State v. Diaz

• Decision Date: 08 January 2007
• Docket Number: No. 25,612.,25,612.
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Kenny DIAZ, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

153 P.3d 57

2007 NMCA 026

STATE of New Mexico, Plaintiff-Appellant, v. Kenny DIAZ, Defendant-Appellee.

No. 25,612.

Court of Appeals of New Mexico.

January 8, 2007.

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

Frechette & Associates, P.C., Todd Hotchkiss, Albuquerque, NM, for Appellee.

OPINION

VIGIL, Judge.

{1} Defendant was convicted of driving a vehicle while under the influence of liquor or drugs (DWI). He was adjudged a felon, and sentenced to an enhanced mandatory prison term after the State established at the sentencing hearing that he had four prior DWI convictions. Defendant finished serving the prison term imposed, and he was on probation when the State attempted to reimprison him and enhance his sentence again because it had recently discovered an additional prior DWI conviction. The trial court denied the State's motion, and the State appeals.

{2} We conclude that all prior DWI offenses which could be used to enhance Defendant's DWI sentence had to be proved by the State at the sentencing hearing. Therefore, the felony DWI sentence resulting from that hearing was not illegal or improper. Moreover, Defendant had a reasonable expectation of finality in that sentence such that further increasing it after he was released from prison could violate double jeopardy and due process. Accordingly, we affirm the order of the trial court denying the State's motion to increase the felony DWI sentence originally given to Defendant.

BACKGROUND

{3} A defendant who has prior DWI convictions may be adjudged guilty of a felony and thereby subject to a mandatory prison term under NMSA 1978, Section 66-8-102 (2005). Subsection (H) directs that "[u]pon a fifth conviction . . . an offender is guilty of a fourth degree felony and . . . shall be sentenced to a term of imprisonment of two years, one year of which shall not be suspended, deferred or taken under advisement." Subsection (I) then states that "[u]pon a sixth conviction . . . an offender is guilty of a third degree felony and . . . shall be sentenced to a term of imprisonment of thirty months, eighteen months of which shall not be suspended, deferred or taken under advisement." Subsection (J) contains directions for seventh or subsequent DWI convictions that are not applicable here. The dispute in this case is whether the enhancement under Subsection (H) for a fourth degree felony with a mandatory prison term of one year or the enhancement under Subsection (I) for a third degree felony with a mandatory prison term of eighteen months is applicable.

{4} The indictment charged Defendant with DWI, and alleged that Defendant was subject to a felony DWI sentence because of prior DWI convictions. Defendant was then found guilty of DWI by a jury. Prior to the sentencing hearing, the State alleged that six prior DWI convictions were applicable to Defendant's sentence. At the sentencing hearing, the trial court determined that there was insufficient proof that two of the alleged prior DWIs could be used to enhance Defendant's sentence and concluded that four prior DWI convictions would be used in sentencing Defendant. The State's request for a continuance to obtain further proof relating to the two disputed prior DWIs was denied. Therefore, the trial court concluded that this was Defendant's fifth DWI conviction for sentencing purposes. Consistent with Subsection (H), the trial court imposed a two-year prison term, required Defendant to serve the one-year mandatory term, suspended the second year, and placed Defendant on five years of probation.

{5} When Defendant had approximately two months remaining to be served in prison, the State filed a motion denominated as a "Motion to Correct Illegal Sentence." The motion recited that the State had "recently" learned of another DWI conviction, and asserted that Defendant's sentence should therefore be changed to reflect a sixth DWI conviction. This would result in elevating Defendant's conviction from a fourth degree felony to a third degree felony, and increasing the mandatory prison term from one year to eighteen months as required by Subsection (I). When the State's motion was heard, Defendant had completed serving his prison term, and he was serving his probation. The State argued that because Defendant's sentence would not be complete until he finished serving his probation, his original sentence was subject to being increased, and double jeopardy was not implicated. Defendant argued that the State had the burden of proving all prior convictions at the time of sentencing, that he had a right to finality in the sentence he received, and that increasing his sentence at that time was unfair and would violate his constitutional right to be free from double jeopardy.

{6} The trial court filed a written order denying the State's motion, finding that Defendant's original sentence was not illegal and that while it had discretion to increase Defendant's original sentence on the basis of the DWI conviction discovered after sentence was originally imposed, it would not exercise its jurisdiction to reopen the sentence because Defendant had already completed serving his prison term. The State appeals from this order.

ANALYSIS

{7} The question presented in this appeal is whether the trial court was required to further increase Defendant's original felony DWI sentence when a prior DWI conviction is discovered by the State after the original sentence was imposed and Defendant has completed serving the term of imprisonment, but has not completed probation. While New Mexico courts have addressed this question in the context of habitual offender enhancement, the question of whether the same rule applies to increased punishment for repeat DWI offenders under Section 66-8-102 is an issue of first impression. Resolution of this issue requires us to interpret the sentencing provisions of Section 66-8-102. We are therefore presented with a question of law, and our review is de novo. See State v. Coyazo, 2001-NMCA-018, ¶ 5, 130 N.M. 428, 25 P.3d 267 (stating that whether an enhanced felony DWI sentence was subject to an additional habitual offender enhancement required statutory interpretation, a question of law subject to de novo review); State v. Guerra, 2001-NMCA-031, ¶ 6, 130 N.M. 302, 24 P.3d 334 (stating that the power of a trial court to sentence is derived exclusively from statute and issues of statutory construction and interpretation are questions of law which are reviewed de novo).

{8} Defendant's original felony sentence was not illegal or improper; it was a valid sentence when it was imposed, and therefore subject to the general prohibition against being increased once he started serving it. "It is a well-established principle of New Mexico law that a trial court generally cannot increase a valid sentence once a defendant begins serving that sentence." State v. Porras, 1999-NMCA-016, ¶ 7, 126 N.M. 628, 973 P.2d 880. A limited exception is when the original sentence is illegal or improper. Id. The State seeks to avoid application of this rule, making two arguments.

{9} The State first asserts that the reasoning applicable to habitual offender enhancements, where a habitual offender's sentence may be enhanced at any time before the underlying prison term, period of probation, or period of parole expires also applies to enhanced DWI sentencing. See id. ¶ 8 ("A defendant's sentence may be enhanced as a habitual offender at any time prior to the expiration of the underlying sentence or period of parole."). It first argues that there is nothing in the DWI statute that expressly forbids the sentencing court from imposing an additional enhancement once a defendant has begun serving his sentence. Furthermore, it argues, DWI sentencing and habitual offender enhancement proceedings are alike because enhanced sentences are mandatory under both statutes upon proof of prior convictions, and the sentencing court is not given discretion to ignore the proven prior convictions.

{10} We reject the State's argument because it overlooks two critical key features of habitual offender enhancement that distinguish it from DWI sentencing. First, the habitual offender statute expressly grants the sentencing court jurisdiction to enhance a defendant's sentence after a defendant has started serving his original sentence, but the DWI sentencing statute does not. Second, the sentencing on the underlying charge and the enhancement of that sentence for habitual offenders involve two separate proceedings, but DWI sentencing involves only one proceeding.

{11} The habitual offender statute clearly grants the sentencing court jurisdiction to adjudicate a charge of habitual offender status after a defendant has started serving the original sentence imposed for the underlying charges. NMSA 1978, Section 31-18-19 (1977) directs:

If at any time, either after sentence or conviction, it appears that a person convicted of a noncapital felony is or may be a habitual offender, it is the duty of the district attorney of the district in which the present conviction was obtained to file an information charging that person as a habitual offender.

NMSA 1978, Section 31-18-18 (1977) also imposes a duty on prison, probation, and parole officers. If they learn that a "person charged with or convicted of a noncapital felony" is a habitual offender they are required to report the facts to the district attorney "who shall then file an information." Id. NMSA 1978, Section 31-18-20(A) (1983) then directs the court in which the defendant was originally convicted to bring before it a person charged as a habitual offender "whether he is confined in prison or not," and conduct a hearing to determine if he is a habitual offender, and if he is, "the court shall sentence him to the punishment as prescribed." Section 31-18-20(C). Given these broad statutory mandates, we have observed that "[t]he ...