State v. Edmondson

• Decision Date: 28 May 1991
• Docket Number: No. 12103,12103
• Citation: 1991 NMCA 69,818 P.2d 855,112 N.M. 654
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert EDMONDSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 855

818 P.2d 855

112 N.M. 654

STATE of New Mexico, Plaintiff-Appellee, v. Robert EDMONDSON, Defendant-Appellant.

No. 12103.

Court of Appeals of New Mexico.

May 28, 1991.

Certiorari Granted July 11, 1991.

Certiorari quashed Sept. 25, 1991.

[112 NM 655] Samantha Dunning, Santa Fe, for defendant-appellant.

Tom Udall, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HARTZ, Judge.

Our opinion in this criminal appeal has two parts. Because the issues treated in part II are of no precedential value and are matters of concern to the parties only, part II will not be published.

I.

Defendant was convicted on two counts of issuance of worthless checks. He contends that the trial court improperly enhanced his sentences as a habitual offender, see NMSA 1978, Sec. 31-18-17 (Repl.Pamp.1990), because the basis for the enhancement was a probated Texas conviction that had been set aside by a Texas court. He argues that the New Mexico habitual-offender statute does not permit the use of such a conviction and that in any case such use is prohibited by Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, because Texas law does not permit such convictions to be considered for habitual-offender sentencing. We affirm.

The question before us is whether defendant's conviction by a Texas court constitutes a "prior felony conviction" for purposes of the New Mexico habitual-offender statute. That statute defines "prior felony conviction" as:

1. [A] conviction for a prior felony committed within New Mexico whether within the Criminal Code or not; or

2. any prior felony for which the person was convicted other than an offense triable by court-martial if:

(a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;

(b) the offense was punishable, at the time of conviction, by death or a maximum term of imprisonment of more than one year; or

(c) the offense would have been classified as a felony in this state at the time of conviction.

NMSA 1978, Sec. 31-18-17(A) (Repl.Pamp.1990). There is no dispute that a valid judgment of conviction for a felony punishable by imprisonment of more than one year was entered against defendant by a Texas court. That is all that is necessary under our statute.

The complication in this case is that defendant was placed on probation after his conviction. Upon successful completion of his probation, the indictment against defendant was set aside by a Texas court.¹ The conviction could not be considered under the Texas habitual-offender statute. See Ex parte Murchison, 560 S.W.2d 654 (Tex.Crim.App.1978) (en banc). It does not follow, however, that a New Mexico court cannot use the conviction for purposes of our habitual-offender statute.

Defendant relies upon State v. Burk, 101 N.M. 263, 680 P.2d 980 (Ct.App.1984). That case is distinguishable. There had never been a conviction of Burk. Under Texas law, Tex.Code Crim.Proc.Ann. art. 42.12, Sec. 3d(a) (Vernon 1979), he had been placed on probation without any adjudication of guilt being entered. We noted, "Texas courts hold that because no adjudication of guilt is entered, the trial court's action in deferring proceedings is not deemed a 'conviction.' " 101 N.M. at 264, 680 P.2d at 981. In contrast, defendant here was placed on probation after a judgment of conviction. See Tex.Code Crim.Proc.Ann. art. 42.12, Secs. 3, 3a.

The reason given by the Texas courts for forbidding the use of a conviction such as defendant's for habitual-offender sentencing is that such a conviction does not become "final" unless and until the probation is revoked. See Ex parte Murchison. That use of the word "final," however, is idiosyncratic. In some respects the conviction is treated as final. For example, the defendant may appeal the conviction at the time he is placed on probation, Tex.Code Crim.Proc.Ann. art. 42.12 Sec. 8(b), and errors at the original trial may not later be raised on an appeal from revocation of probation. See Whetstone v. State, 786 S.W.2d 361 (Tex.Crim.App.1990) (en banc); Carnes v. State, 478 S.W.2d 940 (Tex.Crim.App.1972). Similarly, in Dallas County Bail Bond Board v. Stein, 771 S.W.2d 577 (Tex.Ct.App.1989), the court held that a probated conviction is final for purposes of eligibility to be licensed as a bail bondsman. The court wrote:

By successfully fulfilling the terms of his probation, the probationer is released from such disabilities at the expiration of the period of probation. This release does not affect the finality of the conviction; rather, it merely removes those legal disadvantages associated with such conviction. Id. at 582 (citation and emphasis deleted).

The conviction can even be used for sentencing under the general sentencing statutes. Texas law provides that despite dismissal of the charge the defendant's "conviction or plea of guilty shall be made known to the court" if he is again convicted of a crime. Tex.Code Crim.Proc.Ann. art. 42.12(7). See Tex.Code Crim.Proc.Ann. art. 37.07(3); Glenn v. State, 442 S.W.2d 360, 362 (Tex.Crim.App.1969); McLerran v. State, 466 S.W.2d 287 (Tex.Crim.App.1971). In essence, when the Texas courts have spoken of a judgment of conviction followed by probation as not being a "final conviction," they have been saying only that the conviction cannot be used for purposes of the Texas habitual-offender statute.

In any event, there is no requirement in New Mexico's habitual-offender law that a prior conviction be "final." Burk made no reference to final convictions. The court simply held, "There was no conviction." 101 N.M. at 265, 680 P.2d at 982. Nor is there support elsewhere in our law for a requirement of finality. The New Mexico habitual-offender statute contains no language stating that a conviction must be final before it can be considered for habitual-offender sentencing. No reported case has so interpreted the statute. On the contrary, State v. Tipton, 77 N.M. 1, 419 P.2d 216 (1966), permitted use of a non-final conviction. The court held that a guilty plea by itself constituted a conviction that could be used pursuant to the habitual-offender statute, even though sentence had not been imposed on the plea. Accord Padilla v. State, 90 N.M. 664, 568 P.2d 190 (1977). Under New Mexico law a guilty plea is not "final." An appeal can be taken only after entry of judgment. See NMSA 1978, Sec. 39-3-3 (Orig.Pamp.).

The simple fact of the matter is that defendant was convicted under the laws of the State of Texas. If we are to ignore that conviction for purposes of the New Mexico habitual-offender statute, it must be because either (1) the New Mexico statute does not permit the use of a conviction in circumstances such as in this case or (2) even if New Mexico would otherwise use the conviction, New Mexico incorporates the law of the state where the conviction was entered and will consider only those convictions that can be used under the habitual-offender statute of that state.

The first possibility is foreclosed by New Mexico precedent. Our supreme court has held that a pardon does not prevent the use of a prior conviction for habitual-offender sentencing in New Mexico. Shankle v. Woodruff, 64 N.M. 88, 324 P.2d 1017 (1968). More directly in point, in Padilla our supreme court permitted use of a prior New Mexico conviction even though the charge was later dismissed after successful completion of a deferred sentence. We see no principled way to distinguish the circumstances in these cases from what happens in Texas upon successful completion of probation, as described above in Dallas County Bail Bond Board vs. Stein. The Texas court's action was taken for rehabilitative reasons, not because of any question regarding defendant's guilt.² Nothing in our habitual-offender statute would permit a distinction between (1) a pardon or a dismissal after a deferred sentence and (2) the action taken by the Texas court.

As for the possibility that New Mexico incorporates the law of the state of conviction, the language of the New Mexico habitual-offender statute does not suggest that when considering a conviction from another state, New Mexico will defer to the other state's determination that the conviction should not be used for habitual-offender purposes. Our statute does not require that the state where the offense occurred have a habitual-offender sentencing scheme (in the absence of which no conviction could be used for habitual-offender sentencing in that state), or that the particular felony involved is one that can be used for habitual-offender sentencing in the other state. See State v. Calvin, 244 Or. 402, 418 P.2d 821 (1966) (Oregon can use California forgery conviction even though California did not permit forgery to be used as a predicate offense in a habitual-criminal charge). In Shankle our supreme court strongly endorsed the analysis and rationale of the California Supreme Court's decision in People v. Biggs, 9 Cal.2d 508, 71 P.2d 214 (1937), and adopted that opinion's observation that convictions are to be included within the general provisions of a habitual-offender statute unless they are expressly excluded by the statute. 64 N.M. at 93-94, 324 P.2d at 1020. It is of particular interest that Biggs permitted the use of a Texas felony conviction even though (a) the conviction had been pardoned and (b) under Texas law at the time, Scrivnor v. State, 113 Tex.Cr.R. 194, 20 S.W.2d 416 (App.1928), a pardoned conviction could not be used for habitual-offender sentencing. See Biggs, 9 Cal.2d at 514, 71 P.2d at 217; cf. Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914) (for purposes of habitual-offender sentencing, state may use federal conviction pardoned by president). But see People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 37 Cal.Rptr. 605 (en banc) (Oklahoma pardon given same effect in California that...