State v. Calvert
| Decision Date | 13 December 2002 |
| Docket Number | No. 699., No. 22, No. 734, No. 731 |
| Citation | 2003 NMCA 28,133 N.M. 281,62 P.3d 372 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. James CALVERT, Defendant-Appellee. State of New Mexico, Plaintiff-Appellant, v. Juan Zavala, Defendant-Appellee. State of New Mexico, Plaintiff-Appellant, v. Oscar Sanchez Jacquez, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellant.
Phyllis H. Subin, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellees.
Certiorari Denied, No. 27,853, January 22, 2003.
{1} We consolidate three cases on appeal which raise two questions integral to the mandatory sentencing provisions of NMSA 1978, ? 66-8-102 (1999): whether a defendant may be awarded presentence confinement credit where the defendant has served less than the mandatory minimum "consecutive" jail term imposed pursuant to Section 66-8-102, and if so, whether a defendant is entitled to a full day credit for any partial day served pursuant to State v. Miranda, 108 N.M. 789, 779 P.2d 976 (Ct.App.1989).
{2} We hold that a trial court must award presentence confinement credit to first-time offenders and has discretionary authority to grant presentence confinement credit, for any eligible time served, against a mandatory minimum "consecutive" jail term imposed against a defendant who has been convicted of a second or third offense of driving under the influence (DWI), pursuant to Section 66-8-102. However, we also hold that the Miranda credit rule does not apply to mandatory minimum sentences for misdemeanor DWI convictions that are measured in hours.
{3} Defendant James Calvert (Calvert) was arrested on June 27, 2000, for Driving While Intoxicated (B.A.C. of .08% or above) (DWI), a misdemeanor, and Driving While License Suspended or Revoked (Suspended/Revoked License). On April 3, 2001, Calvert entered a DWI Repeat Offender Plea and Disposition Agreement wherein he pled guilty to DWI, Second Offense, pursuant to Section 66-8-102(F) and the Suspended/Revoked License charge was dismissed. That same day, the magistrate court entered the Judgment and Sentence, sentencing Calvert to 364 days with 361 days suspended for a jail term of three days. On May 18, 2001, the magistrate court granted Defendant's Motion to Award Presentence Confinement and credited Calvert for one day although he had only spent "several hours" at the Dona A?a County Detention Facility prior to being released on bail.
{4} Defendant Juan Zavala (Zavala) was arrested on February 22, 2001, for Aggravated Driving While Intoxicated (B.A.C. of .16% or above) (Aggravated DWI), a misdemeanor, and Driving on Wrong Side of Roadway. On June 13, 2001, Zavala entered a DWI Repeat Offender Plea and Disposition Agreement wherein he pled guilty to Aggravated DWI, Second Offense, pursuant to Section 66-8-102(D)(1) and (F), and the Driving on Wrong Side of Roadway charge was dismissed. That same day, the magistrate court entered the Judgment and Sentence, sentencing Zavala to 364 days with 357 days suspended for a mandatory jail term of seven days (seventy-two hours plus an additional ninety-six hours) for an aggravated second DWI, and awarding Zavala two days presentence confinement credit. The record does not reflect the precise amount of time Zavala spent in jail prior to sentencing, although he apparently served "one day plus an increment of a [second] day" in jail prior to conviction.
{5} Defendant Oscar Sanchez Jacquez (Jacquez) was arrested on October 24, 2001, for Aggravated DWI (Refusal), a misdemeanor; Speeding; Resisting; Evading or Obstructing an Officer; No Proof of Insurance; and No Driver's License. On June 6, 2001, a jury found Jacquez guilty on all charges. The magistrate court entered the Judgment and Sentence on June 29, 2001, convicting Jacquez of Aggravated DWI, First Offense, and sentencing him to ninety days with eighty-eight days suspended for the mandatory minimum sentence of forty-eight hours, pursuant to Section 66-08-102(D) and (E). Subsequently, on Jacquez's motion to award presentence confinement credit, the court awarded him one day credit for the "several hours" Jacquez spent in jail prior to posting bond. However, the exact amount of time Jacquez spent in jail prior to sentencing is unknown.
{6} In each case, the State appealed the Judgment and Sentence to the district court on the ground that the credit for time served was illegal in that it reduced the minimum mandatory "consecutive" sentences prescribed by Section 66-8-102(E) and (F). In Jacquez's case, the district court denied the State's appeal, concluding that the magistrate court was required to credit Jacquez for time served as a first time offender pursuant to State v. Martinez, 1998-NMSC-023, 126 N.M. 39, 966 P.2d 747. Further, the court found that Miranda authorized a full day credit for the portion of one day served in jail by Jacquez. See 108 N.M. at 792, 779 P.2d at 979.
{7} The district courts also denied the Calvert and Zavala appeals, ruling that the award of presentence confinement credit was properly within the discretion of the magistrate court pursuant to Martinez and that the award of a full day credit for a partial day served was appropriate.
{8} May a defendant be awarded presentence confinement credit where the defendant has served less than the mandatory minimum consecutive sentence pursuant to Section 66-8-102? Under Section 66-8-102(E), a first time offender who is convicted of Aggravated DWI must be "sentenced to not less than forty-eight consecutive hours in jail." A second time offender must be "sentenced to a jail term of not less than seventy-two consecutive hours" under Section 66-8-102(F)(1). The sentence for a third time offender increases to "not less than thirty consecutive days" under Section 66-8-102(F)(2). Additional "consecutive" jail time is imposed under subsections (F)(1) and (2) for repeat offenders convicted of aggravated DWI, and under both subsections (E) and (F) offenders who fail to complete sentencing order requirements must serve additional "consecutive" jail time.
{9} The State contends that Defendants' sentences are illegal because they fail to comply with the statutory provision that jail time be served consecutively. The State interprets the statute to mean that time must be served consecutively, hour for hour, "without interruption." To construe the statute otherwise, the State argues, would frustrate legislative intent to punish drunk drivers. The State concludes that this result would be contrary to Martinez, which affords the trial court discretion to award jail time credit only if it "does not lessen the penalty intended by the Legislature, or otherwise frustrate the Legislature's constitutional function of establishing criminal penalties." 1998-NMSC-023, ? 14, 126 N.M. 39, 966 P.2d 747.
{10} Defendants, on the other hand, argue that Martinez squarely addresses the issue of whether granting jail time credit is illegal under Section 66-8-102. Defendant Jacquez argues that Martinez has already explained that the plain language of the statute indicated that on a first conviction, "any time spent in jail for the offense prior to the conviction for that offense shall be credited to any term of imprisonment fixed by the court." 1998-NMSC-023, ? 8, 126 N.M. 39, 966 P.2d 747 (internal quotation marks and citation omitted).
{11} Defendants Calvert and Zavala insist that Martinez has resolved the issue as to second or third time offenders as well in concluding that "the Legislature did not intend to limit trial courts' inherent discretion to provide presentence credit for second and third offenders." 1998-NMSC-023, ? 15, 126 N.M. 39,966 P.2d 747. Limiting the court's discretion to award credit, they argue, would lead to absurd results by requiring judges to sentence some defendants to almost twice the mandatory sentence. This result, Defendants conclude, contradicts the finding in Martinez that the Legislature did not intend to punish second and third time offenders more harshly than fourth time offenders who receive felony convictions. Id.
{12} Martinez does not control these cases directly. The issues before the Court in Martinez were whether a trial court had discretion to award confinement credit for misdemeanor convictions in general, and if so, whether the magistrate court had authority to award credit to a defendant who had served ninety days in an alcohol treatment program, against his entire mandatory sentence. See id. ?? 6-7. The Court held that the trial court had inherent discretion to provide presentence confinement credit for second and third time offenders. Id. ? 15. Defendants here did not serve their entire mandatory minimum sentence, but only a fraction of those sentences. Martinez does not address a situation where the defendant has served less than the mandatory minimum consecutive sentence. These cases, therefore, raise a question of first impression: whether the use of the term "consecutive" in the sentencing of a defendant under Section 66-8-102(E) and (F) indicates the Legislature intended defendants convicted of a first, second, or third offense to serve an indivisible, mandatory minimum jail term, each day in succession, hour for hour, rather than piecemeal.
{13} "The [i]nterpretation of a statute is an issue of law that is subject to de novo review." State v. Cleve, 1999-NMSC-017, ? 7, 127 N.M. 240, 980 P.2d 23, modification on other grounds recognized by State v. Perea, 2001-NMCA-002, ?? 9-19, 130 N.M. 46, 16 P.3d 1105
(quoting State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995)) (internal quotation marks omitted). Because Martinez does not control and this Court must interpret the DWI statute, Def...
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