State v. Bonilla, 25,801.

• Docket Nº: No. 25,801.
• Citation: 15 P.3d 491, 2000 NMSC 37, 130 N.M. 1
• Case Date: December 12, 2000
• Court: Supreme Court of New Mexico

15 P.3d 491
130 N.M. 1
2000 NMSC 37

STATE of New Mexico, Plaintiff-Respondent,
v.
Manuel BONILLA, Defendant-Petitioner

No. 25,801.

Supreme Court of New Mexico.

December 12, 2000.

Phyllis H. Subin, Chief Public Defender, Carolyn R. Glick, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Max W. Shepherd, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

MAES, Justice.

{1} Defendant Manuel Bonilla asks this Court to vacate his sentence imposed after his conviction for trafficking in a controlled substance. Defendant claims that the sentencing judge evinced a harsh predisposition when sentencing defendants, like Bonilla, who elected to have their guilt or innocence decided by a jury. We agree that Defendant's rights under the Sixth Amendment to the United States Constitution were impermissibly infringed upon by the trial judge. We vacate Defendant's sentence and remand

15 P.3d 492

for another sentencing before a different judge

FACTS

{2} Defendant was tried and convicted by a jury of trafficking in a controlled substance.

{3} We cannot determine from the record whether the prosecutor ever offered or Defendant ever requested a plea bargain.

{4} Defendant's sentencing was scheduled for September 29, 1997. Before his case came on, the court was sentencing another Defendant and in the process announced that it was the general policy of the court that "if a person is found guilty of a crime in this court by a jury, that the statutory penalty be imposed." The words "by a jury" were uttered clearly and intentionally by the judge. Immediately thereafter, Defendant's case came on for sentencing. His counsel enumerated some mitigating factors-that while Defendant had some prior misdemeanor convictions, this was his first felony, that he had a large family to support, that he was a good worker in the oil fields and could be reemployed if released, that the restitution ordered was only $150, and also that the amount of cocaine involved was small. Counsel for Defendant then interposed a protest based on the above-quoted comment the judge had made at the previous hearing:

[W]e just heard the court's policy that, if the defendant takes a case to trial and is convicted by a jury, that the court's policy is to impose the statutory penalty. We had been, we would state for the record we were unaware of that policy. And we would object to that policy as improper if the effect of that policy is to penalize a defendant for exercising his right to a jury trial.

Judge Clingman did not respond to counsel's comment. The pre-sentence report recommended incarceration, but did not specify a time period. The court concluded there were no mitigating factors and sentenced Defendant to the basic statutory sentence of nine years imprisonment.

{5} The Court of Appeals affirmed the district court's sentence, relying on State v. Augustus, 97 N.M. 100, 101, 637 P.2d 50, 51 (Ct.App.1981), and concluding that the "sentence itself" was legal. In Augustus, Defendant had had open heart surgery and argued that a subsequent 90 day prison term was cruel and unusual punishment. The Augustus court noted that there was "no claim that the sentence was not in accordance with law," but merely was responding to the bare claim that the trial court had abused its discretion in sentencing. The Augustus court then separately undertook a constitutional analysis, concluding that Defendant's Eighth Amendment rights had not been violated. In this case, the court below did no constitutional analysis, despite the strength of Defendant's argument that once the constitutional issues were considered, the sentence was not in fact "in accordance with the law."

STANDARD OF REVIEW

{6} A trial court's sentencing is reviewed for abuse of discretion. State v. Jensen, 1998-NMCA-034, ¶ 19, 124 N.M. 726, 955 P.2d 195; State v. Augustus, 97 N.M. at 101, 637 P.2d at 51 (Ct.App.1981). "Judicial discretion is abused if the action taken by the trial court is arbitrary or capricious. . . . Such abuse of discretion will not be presumed; it must be affirmatively established." State v. Greene, 92 N.M. 347, 349, 588 P.2d 548, 550 (1978) (citations omitted.) We examine the facts of this case in the light of this standard of review.

DISCUSSION

{7} "A practice which discourages the Fifth Amendment right not to plead guilty, which deters the Sixth Amendment right to demand a jury trial and which chills the assertion of these constitutional rights by penalizing those who choose to exercise them is patently unconstitutional." Thurston v. State, 791 S.W.2d 893, 896 (Mo.App.1990) (citing United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) ("If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional")); see also United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ("[W]hile an individual certainly may be penalized for violating the

15 P.3d 493

law, he just as certainly may not be punished for exercising a protected statutory or constitutional right. . . ."); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) ("[F] or an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is `patently unconstitutional.'"); North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ("[T]he imposition of . . . a punishment `penalizing those who choose to exercise' constitutional rights, `would be patently unconstitutional.'"), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)

{8} In light of this precedent, our inquiry is limited to determining whether Judge Clingman's statements affirmatively established a policy that appears to penalize defendants for exercise of their Sixth Amendment right to trial by jury. Defendant...