State v. Brown
| Decision Date | 24 June 2003 |
| Docket Number | No. 23,219.,23,219. |
| Citation | 76 P.3d 1113,134 N.M. 356 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. George BROWN III, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.
William G. Stripp, Ramah, NM, for Appellant.
Certiorari Denied, No. 28,167, August 26, 2003.
{1} Defendant George Brown III, re-sentenced after remand from this Court, appeals his modified judgment and sentence. He raises six issues, three of which we do not consider for reasons we discuss below. We address the remaining three: whether the delay in re-sentencing violated Defendant's right to a speedy trial, whether entry of a civil forfeiture judgment before entry of the modified judgment and sentence resulted in double jeopardy, and whether the habitual offender enhancement to the trafficking sentence was legal. We affirm.
{2} On January 19, 1999, after a jury trial, Defendant was sentenced to twenty-six years imprisonment with two years parole. His sentences, ordered to run concurrently, were as follows: eighteen months plus an eight-year habitual offender enhancement, pursuant to NMSA 1978, § 31-18-17(D) (2002), for one count of possession of a controlled substance (cocaine), contrary to NMSA 1978, § 30-31-23 (1990); eighteen years plus an eight-year habitual offender enhancement and two years parole, for each of two counts of trafficking a controlled substance (cocaine) by possession with intent to distribute as a second or subsequent such offense, contrary to NMSA 1978, § 30-31-20 (1990); 364 days for one count of possession of drug paraphernalia, contrary to NMSA 1978, § 30-31-25.1 (2001). We need not, for the purposes of this appeal, delve further into the criminal proceedings or detail the factual basis for the convictions.
{3} In Defendant's first appeal, decided by memorandum opinion (first appeal), Defendant appealed his original criminal judgment and sentence on the following five issues: whether merger of the two trafficking counts was required; whether the trial judge should have recused himself and the prosecuting attorney should have been disqualified; whether certain evidence was admissible; whether the proof of Defendant's prior felonies was constitutionally adequate; and whether the jury pool, without African-American representation, allowed him a fair trial. This Court agreed with Defendant that the trafficking counts must be merged into one count but affirmed in all other respects; we remanded for modification of the judgment and sentence on the trafficking counts. Our memorandum opinion was filed on April 26, 2000, and the mandate was sent to the trial court on August 8, 2000.
{4} While awaiting the mandate, Defendant became concerned about proceeding with his federal and state habeas petitions and on August 3, 2000, filed a motion to have the trial court schedule a re-sentencing hearing. The re-sentencing hearing was ultimately scheduled for January 4, 2002. In the interim, four district judges recused themselves from the case, and another was excused by the State. The case was assigned on September 21, 2000, to District Judge Paul Onuska.
{5} The following spring, on April 2, 2001, Defendant, in propria persona, petitioned our Supreme Court for a writ of habeas corpus. Both Defendant and the Supreme Court were under the mistaken impression that the trial court had re-sentenced Defendant on March 2, 2001. The Supreme Court, construing the writ as a direct appeal from the modified judgment, denied the writ and transferred the case to this Court on June 29, 2001. In response to Defendant's motion for limited remand to allow entry of a modified judgment and sentence, this Court ordered the case dismissed and remanded to the trial court to enter a modified judgment and sentence pursuant to our April 26, 2000, memorandum opinion. We also informed Defendant that, should he wish to appeal the modified judgment and sentence, he should file a new notice of appeal pursuant to Rule 12-201(A) NMRA 2003. Our order, filed in this Court on October 24, 2001, was sent to the trial court with an accompanying mandate on December 12, 2001.
{6} The hearing on re-sentencing took place within three weeks from the trial court's receipt of the mandate. On April 16, 2002, the trial court entered the modified judgment, merging the two trafficking counts as directed by this Court. Because the original sentences for the two counts ran concurrently, Defendant's modified sentence remained twenty-six years with two years parole. Defendant timely appealed.
{7} In our April 26, 2000, memorandum opinion, this Court responded to the five issues in Defendant's first appeal and affirmed the convictions on all but one count of trafficking cocaine. Three of Defendant's issues raised in the current appeal arose from his first trial and could have been brought in his first appeal. Those three issues are (1) there was insufficient evidence because the evidence showed Defendant possessed "crack cocaine" or "cocaine base" and he was convicted of offenses relating to "cocaine"; (2) the trial court should not have enhanced the trafficking conviction to a first degree felony while also adding a habitual offender enhancement to the basic sentence, i.e., double enhancement, although the statutes appear to contemplate just such enhancements under the facts presented; and (3) the trial court should have exercised its discretion to suspend all or a portion of the sentence although the pertinent statutes do not permit suspension of sentences for first degree felonies or habitual offender enhancements.
{8} Under the doctrine of law of the case, this Court will not now review issues that Defendant could have but did not raise in his first appeal. See Varney v. Taylor, 79 N.M. 652, 654, 448 P.2d 164, 166 (1968); Royal Int'l Optical Co. v. Tex. State Optical Co., 92 N.M. 237, 243, 586 P.2d 318, 324 (Ct.App.1978). Defendant's current appeal is limited to issues resulting from our reversal of the one trafficking conviction. See Varney, 79 N.M. at 654, 448 P.2d at 166 (). We recognize that the doctrine is discretionary and may not apply if it would result in a manifest injustice. Reese v. State, 106 N.M. 505, 507, 745 P.2d 1153, 1155 (1987). However, Defendant does not argue and there is no suggestion that injustice would result in this case; we therefore apply the doctrine. Consequently, we will not review the foregoing three issues in the current appeal.
{9} A defendant's right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and Article II, Section 14 of the New Mexico Constitution. State v. Marquez, 2001-NMCA-062, ¶ 8, 130 N.M. 651, 29 P.3d 1052. Defendant contends that his right to a speedy trial was violated by a delay of twenty months from the time this Court reversed one of his trafficking convictions and remanded the case for resentencing until Defendant was actually resentenced.
{10} The State acknowledges that this Court assumed in State v. Todisco, 2000-NMCA-064, ¶ 18, 129 N.M. 310, 6 P.3d 1032, that the speedy trial right extends to sentencing proceedings but nevertheless requests us to reject such an extension. As we discussed in Todisco, the United States Supreme Court assumed, without deciding, in Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), that the speedy trial right applies to sentencing. Todisco, 2000-NMCA-064, ¶ 16,129 N.M. 310, 6 P.3d 1032. Since then, the Tenth Circuit and those other federal courts of appeals that have addressed the issue have either considered the application of the speedy trial right to sentencing as established law or have perpetuated the Supreme Court's assumption in Pollard. Id. ¶ 16. Many state courts have either assumed or expressly determined that the right applies to sentencing. Id. ¶¶ 17-18. In this case, we continue the assumption made in Todisco.
{11} We look to Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) for guidance in determining whether a defendant's "constitutional right to speedy sentencing" was violated. Todisco, 2000-NMCA-064, ¶ 19, 129 N.M. 310, 6 P.3d 1032. Under the Barker test, we balance, in light of the facts and circumstances of the particular case, (1) the length of the delay, (2) the reasons for the delay, (3) the assertion of the right, and (4) prejudice to defendant. Id. ¶ 19; see Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir.1986). In considering each of these factors, we defer to the trial court's factual findings but review de novo the question of whether Defendant's constitutional right was violated. Todisco, 2000-NMCA-064, ¶ 19, 129 N.M. 310, 6 P.3d 1032.
{12} The first factor, length of delay, serves two purposes. State v. Coffin, 1999-NMSC-038, ¶ 55, 128 N.M. 192, 991 P.2d 477. The length of the delay initially must "cross [ ] the threshold dividing ordinary from presumptively prejudicial delay" in order to trigger the Barker test. Id. (internal quotation marks and citation omitted). Only after we find presumptive prejudice is the length of the delay then balanced with the remaining three factors. Salandre v. State, 111 N.M. 422, 428, 806 P.2d 562, 568 (1991). Once Defendant demonstrates presumptive prejudice, it is the State's burden to show that it did not violate Defendant's speedy trial right. Id.; State v. Plouse, 2003-NMCA-048, ¶ 41, 133 N.M. 495, 64 P.3d 522.
{13} Because of the dispute between the parties as to the existence of presumptive prejudice, we consider this factor in some detail....
To continue reading
Request your trial
-
State v. Lopez
...and the eventual sentencing violated the defendant's right to a speedy trial and due process); State v. Brown , 2003-NMCA-110, ¶ 9, 134 N.M. 356, 76 P.3d 1113(involving a case where the defendant argued that "his right to a speedy trial was violated by a delay of twenty months from the time......
-
State v. Fierro
...question of whether [the d]efendant's constitutional right [to a speedy trial] was violated.” State v. Brown, 2003–NMCA–110, ¶ 11, 134 N.M. 356, 76 P.3d 1113. {7} In this case, Defendant was brought to trial on November 30, 2010. Defendant argues that the delay amounted to six years because......
-
State v. O'Neal
...but review de novo the question of whether Defendant's constitutional right was violated." State v. Brown, 2003-NMCA-110, ¶ 11, 134 N.M. 356, 76 P.3d 1113. That is, weighing and balancing the Barker factors is a legal determination that we review de novo. See Urban, 2004-NMSC-007, ¶ 11, 135......
-
State v. Dorais
..."the absence of prejudice outweighs other factors that may weigh in a defendant's favor." State v. Brown, 2003–NMCA–110, ¶ 17, 134 N.M. 356, 76 P.3d 1113. This is the case here. {23} There are "three interests under which we analyze prejudice to the defendant: ... to prevent oppressive pret......