State v. Angel

• Decision Date: 24 July 2002
• Docket Number: No. 26,683.,26,683.
• Citation: 132 N.M. 501,2002 NMSC 25,51 P.3d 1155
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Alfred ANGEL, Defendant-Petitioner.
• Court: New Mexico Supreme Court

51 P.3d 1155

132 N.M. 501

2002 NMSC 25

STATE of New Mexico, Plaintiff-Respondent, v. Alfred ANGEL, Defendant-Petitioner.

No. 26,683.

Supreme Court of New Mexico.

July 24, 2002.

Phyllis H. Subin, Chief Public Defender, Christopher Bulman, Appellate Defender Santa Fe, NM, for Petitioner.

Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General Santa Fe, NM, for Respondent.

OPINION

BACA, Justice.

{1} We granted our writ of certiorari to the Court of Appeals pursuant to NMSA 1978, § 34-5-14 (1972), to decide whether this Court should abandon its long-standing jurisdictional exception to the double jeopardy prohibition against successive prosecutions. However, because we conclude that jeopardy did not attach when the magistrate court accepted Defendant's plea but dismissed the charges prior to sentencing, the Double Jeopardy Clause did not bar Defendant's subsequent prosecution in district court. We, therefore, do not reach the jurisdictional exception issue. Accordingly, we reverse the Court of Appeals as to the license charge and affirm, but on different grounds, the felony DWI conviction.

I.

{2} Defendant Angel was arrested on Saturday, January 16, 1999, and charged by criminal complaint with misdemeanor aggravated driving while under the influence of intoxicating liquor (DWI) and related traffic offenses, including driving with a suspended or revoked license. On January 20, the first business day following his arrest, the arresting officer filed a criminal complaint in magistrate court. Defendant pleaded no contest to all charges, and the court accepted the plea and signed the plea agreement. No prosecutor was present. Defendant was released on bond.

{3} On March 15, 1999, a notice of sentencing was sent to the District Attorney's Office stating that sentencing on Defendant's case was set for April 1, 1999. At the sentencing hearing, the State sought to dismiss the criminal complaint so that it could pursue felony DWI and related traffic offenses in district court. On April 22, 1999, the complaint was dismissed without prejudice so that the State could pursue the felony charges.

{4} On August 20, 1999, a grand jury returned an indictment charging Defendant with the same crimes as those filed in magistrate court, except that the DWI was charged as a felony pursuant to NMSA 1978, § 66-8-102(G) (1999). Defendant first appeared in district court on September 13, 1999, and pleaded not guilty to the charges. When discussing bond, the State presented a pre-sentence report from a pending Albuquerque DWI charge which revealed that Defendant had fourteen DWI arrests and a minimum of seven prior convictions. The court set bond at $20,000 cash, stating that it was not "comfortable" with releasing Defendant in light of his extensive DWI record.

{5} On February 10, 2000, Defendant filed a motion to dismiss the indictment and remand the case to magistrate court. Defendant argued that his prior no-contest plea in magistrate court was valid and that the district court prosecution violated double jeopardy. The State responded that it was within the magistrate court's discretion to dismiss the complaint upon learning that the misdemeanor DWI was in fact a felony DWI, that the district court prosecution did not violate double jeopardy protections because jeopardy did not attach to Defendant's no-contest plea prior to sentencing, and that the jurisdictional exception applied. The State represented to the court that the District Attorney's office first became aware of the case when it received the April 1 notice of sentencing. The State indicated that an assistant district attorney appeared at the sentencing hearing and notified the judge that the District Attorney's office knew at that point that it was actually a felony DWI. At the hearing on the motion to dismiss, Defendant argued that the magistrate court's acceptance of his no-contest plea constituted a conviction for double jeopardy purposes and thus prohibited the State from subsequently prosecuting him for the same and greater offenses in district court. The district court denied the motion to dismiss, concluding that the magistrate court did not abuse its discretion in dismissing the complaint, and that double jeopardy was not implicated because the magistrate court had not yet sentenced Defendant. Defendant subsequently entered a plea of guilty to felony DWI and driving with a suspended or revoked license. He reserved the right to appeal the denial of his motion on double jeopardy grounds. {6} The Court of Appeals issued a memorandum opinion which affirmed the denial of Defendant's motion to dismiss as to the felony DWI conviction but reversed as to the license charge. The Court found that the jurisdictional exception applied to the DWI charge because, although jeopardy had attached when the court accepted Defendant's no-contest plea, that court did not have jurisdiction to hear the felony DWI. Thus, the jurisdictional exception permitted the subsequent felony DWI prosecution in district court. However, the Court concluded that because the magistrate court had jurisdiction over the misdemeanor license charge, the subsequent prosecution in district court on that charge violated double jeopardy.

II.

{7} The Double Jeopardy Clause of the United States Constitution guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V; see also N.M. Const. art. II, § 15 ("[N]or shall any person be twice put in jeopardy for the same offense...."). This guarantee applies to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Three situations implicate double jeopardy protections: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Defendant argues that this case calls into question the constitutional right to be free from being prosecuted again for the same offense after conviction. We disagree. In order to successfully claim double jeopardy, a former jeopardy must have occurred — there must have been a previous proceeding in which jeopardy attached. See Serfass v. United States, 420 U.S. 377, 390-91, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Santiago Soto, 825 F.2d 616, 618 (1st Cir.1987). We do not believe jeopardy attached to Defendant's plea prior to being sentenced on the misdemeanor charges.

{8} The concept of "attachment of jeopardy" arises from the idea that there is a point in a criminal proceeding at which the constitutional purposes and policies behind the Double Jeopardy Clause are implicated and the defendant is put at risk of conviction and punishment. Serfass, 420 U.S. at 388-91, 95 S.Ct. 1055. It is only after a defendant is deemed to have been put in former jeopardy that any subsequent prosecution of the defendant brings the guarantee against double jeopardy into play. See id. at 393, 95 S.Ct. 1055; see also Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). In a criminal trial, jeopardy attaches at the moment the trier of fact is empowered to make any determination regarding the defendant's innocence or guilt. Serfass, 420 U.S. at 388, 95 S.Ct. 1055. The United States Supreme Court has held that jeopardy attaches in a jury trial when the jury is empaneled and sworn, and in a bench trial when the court begins to hear evidence. Id. The United States Supreme Court has yet to decide when jeopardy attaches to a guilty plea, but it has assumed that jeopardy attaches at least by the time of sentencing on the plea. See Ricketts v. Adamson, 483 U.S. 1, 8, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). In State v. Nunez, 2000-NMSC-013, ¶ 28, 129 N.M. 63, 2 P.3d 264, this Court stated that "[i]n the case of a guilty plea or plea of nolo contendere, jeopardy attaches at the time the court accepts the defendant's plea." However, the issue in Nunez was not at what point jeopardy attaches to a guilty plea or plea of nolo contendere, but rather whether the defendant's guilty plea waived his double jeopardy claims. Further, in Nunez all of the defendants were first put in jeopardy by a civil forfeiture proceeding. Thus, a determination of when jeopardy attaches in a criminal trial was unnecessary to the issues discussed in that case.

{9} Nunez relied upon State v. James, 94 N.M. 7, 9, 606 P.2d 1101, 1103 (Ct.App.1979), rev'd,93 N.M. 605, 603 P.2d 715 (1979), for this proposition. That case, however, was reversed when this Court decided that the Court of Appeals erred when it determined on the record before it that the defendant had in fact pleaded guilty to the crime. State v. James, 93 N.M. 605, 603 P.2d 715 (1979). Because this Court decided that the Court of Appeals lacked substantial evidence to determine that factual question, we did not determine whether jeopardy would have attached at that point. Conversely, in State v. Alingog, 117 N.M. 756, 877 P.2d 562 (1994), we suggested that jeopardy did not attach on a guilty plea until judgment is entered. As will be shown, however, that language is also dicta. Thus, the question of when jeopardy attaches to a guilty plea or plea of nolo contendere remains unanswered in New Mexico.

{10} In denying Defendant's motion to dismiss, the district court found that double jeopardy was not implicated because the magistrate court had not yet sentenced Defendant. The district court appears to have been persuaded by the authorities advanced by the State in its response to the motion to dismiss, including Alingog, 117 N.M. 756, 877 P.2d 562, Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and United States v....