State v. Fairbanks

• Decision Date: 08 October 2003
• Docket Number: No. 22,996.,22,996.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey FAIRBANKS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

82 P.3d 954

134 N.M. 783

2004 NMCA 5

STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey FAIRBANKS, Defendant-Appellant.

No. 22,996.

Court of Appeals of New Mexico.

October 8, 2003.

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

John B. Bigelow, Chief Public Defender, Jennifer Byrns, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} Defendant appeals from an Order of Conditional Discharge, which required him to pay a $75 crime lab fee. NMSA 1978, Section 30-31-28 (1972) (governing conditional discharges). The sole issue on appeal is whether the district court properly assessed the crime lab fee pursuant to NMSA 1978, Section 31-12-8 (1988) (crime lab fee statute). We reverse.

FACTS AND PROCEDURAL HISTORY

{2} In July 2000 Defendant was indicted for distribution of an imitation controlled substance and possession of a controlled substance. Defendant entered into a Plea and Disposition Agreement in which he agreed to plead guilty to the possession charge and the State agreed to dismiss the distribution charge. The State also agreed to a sentence of probation. There was no other agreement as to sentence. The Plea and Disposition Agreement was filed and recorded with the district court on October 30, 2000. There is no indication in the record that the district court ever formally accepted the plea. See Rule 5-304(B) NMRA 2003. Rather, at the first hearing, the district court deferred sentencing without entering an adjudication of guilt and referred Defendant to a drug court program. One year later, following Defendant's successful completion of the drug court program, a second sentencing hearing was held. At that time, the district court granted Defendant a conditional discharge, credited him with eighteen months probation for his completion of the drug court program, and entered an unconditional Order of Dismissal, dismissing the criminal charges with prejudice. A month later, at the presentment hearing, defense counsel refused to sign the State's proposed Order of Conditional Discharge because it was conditioned on a $75 crime lab fee. Defendant argued that a conditional discharge is an adjudication without guilt that does not constitute a "conviction" for purposes of the crime lab fee statute. The State maintained that the guilty plea which Defendant entered was a conviction, regardless of the sentence he received. The district court agreed with the State and entered an Order of Conditional Discharge, assessing the crime lab fee against Defendant as a "cost."

DISCUSSION

{3} Defendant argues that the crime lab fee statute applies only to persons "convicted" of a drug offense. Although he pled guilty to possession, Defendant reads the conditional discharge statute to expressly authorize the district court to grant a conditional discharge after a guilty plea is entered and accepted by the court. Defendant urges that under the plain language of the statute, a guilty plea followed by a conditional discharge is not a conviction. Since there was no conviction, Defendant reasons that the imposition of costs was an illegal sentence, contrary to NMSA 1978, § 31-12-6 (1972).

{4} The State does not address the conditional discharge statute in its answer brief, although it concedes that the crime lab fee statute requires a conviction before the lab fee can be imposed. Instead, the State takes the position that the district court can impose costs, even without statutory authority, if the parties agree. In the State's view, Defendant agreed to pay the fee under the terms of the plea and those terms are binding. The State also points out that Defendant expressly agreed not to appeal any sentence imposed in accordance with the terms of the plea, and since the fee was an express term of the agreement, Defendant is not an aggrieved party for purposes of this appeal. However, if the fee was improper, the State argues that the appropriate remedy is to allow Defendant to withdraw the entire plea, rather than to delete a single term.

Dismissal of Charges Under Conditional Discharge is not a Conviction for Purposes of the Crime Lab Fee Statute

{5} We first address the question of whether the district court had authority to impose the fee. Resolution of this issue requires a determination of whether a dismissal under the conditional discharge statute is a "conviction" as contemplated by the crime lab fee statute. Statutory interpretation is a question of law that we review de novo. State v. Perez, 2002-NMCA-040, ¶ 10, 132 N.M. 84, 44 P.3d 530; State v. Herbstman, 1999-NMCA-014, ¶ 16, 126 N.M. 683,974 P.2d 177.

{6} The fundamental tenet of statutory construction is to give effect to legislative intent. State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994); State v. Saiz, 2001-NMCA-035, ¶ 2, 130 N.M. 333, 24 P.3d 365. The primary indicator of legislative intent is the plain language of the statute. Id. We refrain from further interpretation where the language is clear and unambiguous. State v. Anthony M., 1998-NMCA-065, ¶ 13, 125 N.M. 149, 958 P.2d 107. The relevant portion of the crime lab fee statute unequivocally requires Defendant to be "convicted" of a crime before the lab fee can be imposed. It provides: "A person convicted of a violation of the provisions of the Controlled Substances Act [30-31-1, NMSA 1978] ... shall be assessed, in addition to any other fee or fine, a fee of seventy-five dollars ($75.00) to defray the costs of chemical and other analyses of controlled substances." Section 31-12-8(A) (emphasis added).

{7} The conditional discharge statute provides in relevant part:

A. If any person who has not previously been convicted of violating the laws of any state or any laws of the United States relating to narcotic drugs, marijuana, hallucinogenic or depressant or stimulant substances, is found guilty of a violation of Section 23 [30-31-23 NMSA 1978], after trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of the person, defer further proceedings and place him on probation upon reasonable conditions and for a period, not to exceed one year, as the court may prescribe.

....

C. If during the period of his probation the person does not violate any of the conditions of the probation, then upon expiration of the period the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt.... A discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the penalties prescribed under this section for second or subsequent convictions or for any other purpose. Discharge and dismissal under this section may occur only once with respect to any person.

Section 30-31-28 (emphasis added).

{8} It is difficult to conceive of a legislative command more clear. Under the plain language of subsection (A), upon a guilty plea or verdict, the defendant is placed on probation and sentencing is deferred without an adjudication of guilt. See Herbstman, 1999-NMCA-014, ¶ 11,

126 N.M. 683,

974 P.2d 177 (comparing deferred sentence where adjudication of guilt is entered and conditional discharge where it is not); Ogden, 118 N.M. at 242,

880 P.2d at 853 (primary indicator of legislative intent is the plain language of the statute). Once the probationary period has been successfully completed, the person must be discharged and charges must be dismissed, without an adjudication of guilt, and the discharge or dismissal may not be deemed a "conviction" for any purpose. Consequently, once a defendant successfully completes probation and charges are dismissed under a conditional discharge, the conviction whether by verdict or plea, no longer exists. See State v. Brothers, 2002-NMCA-110, ¶ 10, 133 N.M. 36, 59 P.3d 1268.

{9} In addition, we note that the conditional discharge statute was in existence long before the crime lab fee statute was enacted in 1981. See 1972 N.M. Laws, ch. 84, § 28 (conditional discharge); 1981 N.M. Laws, ch. 367, § 3 (crime lab fee). Yet, the legislature expressly chose to make a "conviction" the prerequisite to imposing a crime lab fee, without exception. See NMSA 1978, § 31-12-8 (1988). Since then, the legislature has not altered the language of the conditional discharge statute to authorize a fee. See § 30-31-28 and NMSA 1978, § 31-20-13 (1994); compare NMSA 1978, § 31-18-17(B) (2003) (amending habitual offender statute to permit use of conditional discharge taken pursuant to Section 31-20-13 as a prior conviction). The legislature is presumed to be aware of existing statutes when it enacts legislation. State v. McClendon, 2001-NMSC-023, ¶ 10, 130 N.M. 551, 28 P.3d 1092.

{10} The State is correct that New Mexico courts hold that a guilty plea typically constitutes "conviction" once the court accepts and records it. See NMSA 1978, § 30-1-11 (1963); see also Padilla v. State, 90 N.M. 664, 666, 568 P.2d 190, 192 (1977)

(finding defendant was "convicted" for purpose of habitual offender sentencing, even though criminal charges were dismissed under deferred sentence); State v. Larranaga, 77 N.M. 528, 529-30, 424 P.2d 804, 805 (1967) (holding "conviction" refers to finding of guilt by guilty plea or by verdict, and does not require imposition of sentence for purpose of habitual offender act); State v. Mondragon, 107 N.M. 421, 424, 759 P.2d 1003, 1006 (Ct. App.1988) (defining conviction as finding of guilt, even before formal adjudication by court or sentencing); State v. Castillo, 105 N.M. 623, 624, 735 P.2d 540, 541 (Ct.App. 1987) ("For all practical purposes, this defendant was `convicted' of the prior crime at the time he entered, and the judge accepted, his plea. It is the fact of a prior conviction, not a prior sentence, that is...