State v. Comitz, A-1-CA-38412

Case DateMarch 28, 2022
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

JASON LEE COMITZ, Defendant-Appellant.

No. A-1-CA-38412

Court of Appeals of New Mexico

March 28, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.


Hector H. Balderas, Attorney General

Benjamin Lammons, Assistant Attorney General

Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender

Mary Barket, Assistant Appellate Defender

Santa Fe, NM for Appellant



{¶1} Defendant Jason Comitz appeals the district court's amended judgment and sentence on multiple convictions after the New Mexico Supreme Court in State v. Comitz, 2019-NMSC-011, 443 P.3d 1130, reversed several of his convictions. Defendant's resentencing reduced his prison sentence from life plus fifteen years to


thirty-four and one-half years. In this appeal, Defendant contends the district court, in fashioning his amended sentence, deprived him of due process by acting vindictively and relying on acquitted conduct or abused its discretion. We affirm.


{¶2} Several days before the incident giving rise to the charges in this case, Defendant went to the home of his friend Paul Randy Rael (Randy) to collect a drug debt of $30. Id. ¶ 2. During a fight that ensued between Randy's stepson Manuel Ramirez (Manuel) and Defendant, Defendant was punched multiple times and pushed to the ground. Id. Several days later, Defendant and two companions, all armed with handguns, returned to the Rael home. Id. ¶ 3. Randy, Manuel, Randy's wife, Randy's son, Paul Rael Junior (Paul), and Randy's ten-year-old granddaughter were there. Id. Randy's wife and granddaughter remained inside, while Randy, Manuel, and Paul went out to the porch. Id. ¶¶ 4-5. Meanwhile, Defendant and his companions were on the sidewalk. Id. ¶ 5. Eventually, Defendant and his companions began shooting at Randy, Manuel, and Paul. Id. ¶ 6. Randy died from a gunshot wound to his neck; Paul was shot in the head and survived; and Manuel was shot in the leg and survived. Id. ¶ 8. Randy's wife and granddaughter were not physically injured. Id.

{¶3} Defendant was charged with numerous offenses, id. ¶ 9, and a jury convicted him of first-degree felony murder and second-degree murder of Randy, four counts


of aggravated battery of Paul and Manuel, two counts of aggravated assault of Paul and Manuel, multiple conspiracy counts, child abuse, and shooting at a dwelling. Id. ¶ 10. The district court judge, who presided over the jury trial, sentenced Defendant to the basic sentence for each offense, including life imprisonment for first-degree felony murder, NMSA 1978, § 30-2-1(A)(2) (1994), with firearm enhancements where applicable. See NMSA 1978, § 31-18-14 (2009) (basic sentences for capital felonies); NMSA 1978, § 31-18-15 (2007, amended 2019) (basic sentences for noncapital felonies); NMSA 1978, § 31-18-16 (1993, amended 2020) (firearm enhancement). The district court ran the sentences for the aggravated assault convictions concurrently with the sentences on the remaining convictions. Otherwise, in all relevant respects, the remaining sentences ran consecutively for an aggregate sentence of life plus fifteen years.

{¶4} Defendant appealed his convictions to the New Mexico Supreme Court. See Comitz, 2019-NMSC-011, ¶ 11. The Court concluded that the State failed to prove the predicate felony of shooting at a dwelling for Defendant's first-degree felony murder conviction. Id. ¶ 23. The Court explained that shooting at a dwelling requires a showing "that the target of the defendant['s] gunfire was the dwelling . . . itself." Id. ¶ 19. In this case, the Court concluded that "the only reasonable inference from the evidence" was that "Defendant and his companions specifically and primarily


targeted the Raels themselves in the course of a gunfight that took place in front of the dwelling." Id. ¶ 18.

{¶5} Because the State failed to prove the predicate felony, the Court vacated Defendant's convictions for first-degree felony murder and shooting at a dwelling; and for similar reasons, the Court vacated his conviction for conspiracy to commit shooting at a dwelling. Id. ¶¶ 23-24. The Court also vacated, on double jeopardy grounds, two of Defendant's convictions for aggravated battery and two of his convictions for conspiracy. Id. ¶¶ 31, 36. The Court remanded the case to the district court for resentencing on the remaining convictions: second-degree murder of Randy, two counts of aggravated battery of Paul and Manuel, conspiracy to commit aggravated battery, two counts of aggravated assault of Paul and Manuel, and child abuse. See id. ¶¶ 9, 53.

{¶6} The same judge who presided over the jury trial and Defendant's original sentencing presided over Defendant's resentencing. At the resentencing hearing, the district court and the parties agreed that the maximum sentence allowed on the remaining charges, including with applicable firearm enhancements, was thirty-four and one-half years. The following exchange ensued:

Judge: I've already heard all the arguments, right
Defense counsel: Your, honor, the defense does have some arguments now that this case has been remanded on the second-degree murder as opposed to a first . . . .[1]
Judge: What could be different?
Defense counsel: And the fact that so many convictions were actually vacated. Well, your honor, at this time…
Judge: Well, I don't agree. Let me just tell you from the start, when you shoot in the direction of a house, that's shooting at a dwelling. I don't agree with the Supreme Court and how they did that, and that's fine; I'm coming back on it, but, go ahead.

At that point, the district court permitted extensive argument from defense counsel. Defense counsel requested that the district court run the remaining counts as it did in the original sentencing-that is, run the aggravated assault convictions concurrently with the other offenses and run all other offenses consecutively-for an aggregate sentence of twenty-nine and one-half years. Defense counsel further requested that the district court suspend thirteen and one-half years, for an effective term of sixteen years' incarceration. Counsel argued the sentence would be comparable to the codefendants' sentences and contended it was justified given Defendant's relative culpability, shown in part by the fact that the bullet that killed Randy was not from Defendant's gun.[2]


{¶7} Randy's wife spoke next, followed by counsel for the State. The State contended that the incident would not have happened had Defendant not instigated it, and the State requested that all counts be run consecutively so Defendant would be sentenced to the full thirty-four and one-half years. Defendant then addressed the court. Though he apologized for "what ha[d] happened," he did not appear to accept responsibility for his actions, stating, "There's no way I would have [done] anything to hurt Randy." In announcing her sentencing decision, the district court judge stated:

I remember this trial and I remember the testimony of the witnesses and the evidence that was presented, and [Defendant] was the start of all of this over $30. And the life of an individual was worth $30. And the fact that you had gotten upset about the son pushing you down on the ground when you came to collect your $30. You then, with friends, with drugs and alcohol, fueled your anger at being disrespected, being pushed down; you and your friends decided to go show them who was boss. And all three of you were armed. And you don't go to a place unless you mean business-if you carry a gun with you, you mean business. Mr. Comitz, had you not decided to try to confront them with your friends, none of this would have happened. This was all your decision making. And maybe it helps you to sleep at night knowing that your bullet wasn't the one that killed your friend. But that bullet wouldn't have been there had it not been [for] you. So ultimately, you hold most of the responsibility for all of this, compared to the codefendants in this case, who didn't know Randy, who didn't know the family, who had no dog in that fight. This was all your fight, not theirs. I'm going to run everything consecutive to each other, for a total of thirty-four and a half years.

{¶8} Defendant now appeals his amended sentence.


{¶9} We generally review a trial court's sentencing decision for an abuse of discretion. See State v. Bonilla, 2000-NMSC-037, ¶ 6, 130 N.M. 1, 15 P.3d 491. However, Defendant's due process challenges, if preserved, are generally subject to de novo review. See State v. Dyke, 2020-NMCA-013, ¶ 24, 456 P.3d 1125 (reviewing de novo the question of "whether a harsher sentence represents a due process violation"). But see State v. Gardner, 2003-NMCA-107, ¶ 39, 134 N.M. 294, 76 P.3d 47 (applying the abuse of discretion standard to decide whether the court's consideration of uncharged conduct at sentencing violated due process).

{¶10} While Defendant contends he "preserved arguments related to the general propriety of [his] sentence," he acknowledges that he did not object on the due process grounds he now raises on appeal. In light of this, we conclude that Defendant's due process arguments were not preserved. See Rule 12-321(A) NMRA ("To preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked."); see also State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 ("In order to preserve an issue for appeal, a defendant must make a timely objection...

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