State v. Franco

• Decision Date: 14 June 2016
• Docket Number: Docket No. 33,392
• Citation: 387 P.3d 279
• Parties: State of New Mexico, Plaintiff–Appellee, v. Christopher Franco, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

387 P.3d 279

State of New Mexico, Plaintiff–Appellee,

v.Christopher Franco, Defendant–Appellant.

Docket No. 33,392

Court of Appeals of New Mexico.

Filing Date: June 14, 2016

Certiorari Denied, August 1, 2016, No. S–1–SC–35986

Hector H. Balderas, Attorney General, Santa Fe, NM, Steven H. Johnston, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, J. K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} This case and this Defendant have been before this Court before. This second appeal raises procedural and substantive issues flowing from our double jeopardy jurisprudence. The procedural question boils down to whether Defendant can even pursue a second appeal. The substantive question is whether Defendant can be sentenced under NMSA 1978, Section 31–18–15(A)(4) (2007, amended 2016), following his conviction under NMSA 1978, Section 30–3–8(B) (1993), for shooting at a motor vehicle when the shooting resulted in a death. We conclude that Defendant has a right to appeal, and we affirm the sentence.

BACKGROUND

{2} In July 2007 Christopher Franco (Defendant) shot and killed William Healy during an abortive drug transaction. The shooting occurred outside Defendant's apartment as Healy drove his pickup truck in reverse at a high rate of speed toward Defendant. Defendant was convicted of voluntary manslaughter, shooting at a motor vehicle resulting in great bodily harm (death), aggravated assault, and tampering with evidence. Defendant was sentenced to eleven years of incarceration for the voluntary manslaughter conviction, which included a six-year basic sentence, a one-year firearm enhancement, and a four-year habitual offender enhancement. In addition, he was sentenced to nineteen years of incarceration for the shooting at a motor vehicle conviction, consisting of a fifteen-year basic sentence and a four-year habitual offender enhancement. The nineteen-year sentence was ordered to be served consecutive to the eleven-year manslaughter sentence.

{3} Defendant appealed his convictions and sentences arguing in part that they violated double jeopardy in two respects: (1) the shooting at a motor vehicle and voluntary manslaughter charges should be merged; or (2) the shooting at a motor vehicle sentence should not have been enhanced. Our initial calendar notice proposed to hold that there was no difference between the two theories. The idea that there were two double jeopardy aspects to Defendant's case was never brought up again in his first appeal.

{4} Relying on State v. Dominguez , 2005–NMSC–001, ¶¶ 5–16, 137 N.M. 1, 106 P.3d 563, we summarily affirmed Defendant's convictions and sentencing. State v. Franco (Franco I ), No. 30,028, mem. op., 2010 WL 4924746 (N.M. Ct. App. Sept. 1, 2010) (non-precedential). The Supreme Court granted certiorari in Defendant's case and in a companion case to review whether the ruling in Dominguez should be retained. On certiorari the Supreme Court only considered the question whether convicting Defendant of both voluntary manslaughter and shooting at a motor vehicle violated double jeopardy. State v. Franco (Franco II ), No. 32,605, order ¶ 5, 149 N.M. 65, 243 P.3d 1147 (N.M. Sup. Ct. June 10, 2013) (non-precedential). Relying on the companion case of State v. Montoya , 2013–NMSC–020, 306 P.3d 426, in which Dominguez was overruled, the Supreme Court concluded that it did, and vacated Defendant's conviction for voluntary manslaughter. Franco II , No. 32,605, order ¶ 5;Monto ya , 2013–NMSC–020, ¶¶ 54–56, 306 P.3d 426 (vacating the voluntary manslaughter conviction because it carried the shorter sentence: six years for a third degree felony resulting in death versus fifteen years for a second degree felony resulting in death).

{5} On remand, the district court held a new sentencing hearing and entered an amended judgment and sentence reflecting another sentence of fifteen years for the shooting at a motor vehicle conviction. At the hearing, Defendant posed no objection to the new sentence. The amended sentence was entered on October 30, 2013. A notice of appeal was filed on December 6, 2013.

{6} Our review of all of the issues presented is de novo. See State v. Chavarria , 2009–NMSC–020, ¶ 11, 146 N.M. 251, 208 P.3d 896.

APPEALABILITY

{7} The State questions whether the appeal "is ... properly before this Court for procedural reasons and because [we] should apply the law of the case doctrine." The State offers a melange of rationales why this appeal is not properly before us. First, the State notes that the notice of appeal was filed late and argues that we should not apply the presumption of ineffective assistance of counsel recognized in State v. Duran , 1986–NMCA–125, ¶ 10, 105 N.M. 231, 731 P.2d 374, because Defendant has no right to a second appeal. The State suggests that Defendant is better left to a habeas corpus proceeding. The State also asserts that the law of the case doctrine counsels that we should decline to accept the appeal. We disagree.

{8} We start our analysis by considering the nature and strength of the right to be free from double jeopardy. First, it is a right of explicit constitutional dimension. New Mexico Constitution Article II, Section 15 provides, in pertinent part, that "any person [shall not] be twice put in jeopardy for the same offense[.]" Second, the Legislature has provided that "[t]he defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment." NMSA 1978, § 30–1–10 (1963). Based on the wording of Section 30–1–10, our Supreme Court has held that a defendant can assert a double jeopardy defense even when he has pled guilty to the challenged offense and has failed to reserve the issue in his plea. State v. Nunez , 2000–NMSC–013, ¶ 99, 129 N.M. 63, 2 P.3d 264 ; see State v. Handa , 1995–NMCA–042, ¶¶ 8–9, 17, 120 N.M. 38, 897 P.2d 225.

{9} Perhaps most apropos to the factual scenario we see here is State v. Breit , 1996–NMSC–067, 122 N.M. 655, 930 P.2d 792. In Breit , the Supreme Court held in a second appeal that the defendant could not be retried for murder when the district court had granted a new trial based on extreme prosecutorial misconduct. Id. ¶ 1. Before getting to the merits of the claim, however, the Supreme Court had to address the fact that the same issue had been squarely decided against the defendant in a prior appeal. Id. ¶¶ 10–12.

{10} After the district court granted the new trial, the defendant moved for dismissal of all charges on double jeopardy grounds. Id. ¶¶ 5–6. The district court granted the motion. The state appealed the dismissal of the charges and this Court reversed, concluding that a new trial would not pose a double jeopardy violation. Id. The defendant in Breit asked the Supreme Court to review the Court of Appeals' decision but the Supreme Court denied certiorari. Id. On remand, Breit was convicted in a second trial and sentenced to life imprisonment. Id. ¶ 7. Breit appealed again asserting double jeopardy. See id.

{11} Based on this procedural history, the state argued that the law of the case doctrine prevented the Supreme Court from addressing the issue in the second appeal. The Supreme Court disposed of the argument quickly, first by citing to Section 30–1–10 (quoted above) and then by noting that "[t]he right to be protected from double jeopardy is so fundamental, that it cannot be relinquished even if a conviction is affirmed on appeal." Breit , 1996–NMSC–067, ¶ 11, 122 N.M. 655, 930 P.2d 792. The State in the case at hand agrees with this observation.

{12} Furthermore, the Court noted, while the law of the case doctrine is an important prudential policy, it is not inflexible and in the end is a discretionary matter. Id. ¶ 12.

The State recognizes that as such law of the case is not a procedural bar to our jurisdiction.

{13} This authority counsels against use of the doctrine to preclude the appeal here. While Defendant hinted in his first appeal at the double jeopardy theory he advances now, it was certainly not decided by this Court or the Supreme Court. Even if the issue had been decided previously, Breit teaches that a second appeal, with perhaps better arguments, should be allowed. Further, there is nothing in the record that can be used to argue that Defendant intentionally waived or abandoned the argument. The State admits as much.

{14} The State notes that in State v. Brown , 2003–NMCA–110, 134 N.M. 356, 76 P.3d 1113, this Court apparently relied on the law of the case doctrine to refuse to consider a challenge to an assertedly improper double enhancement of the defendant's sentence in a drug trafficking case because he had not made the argument in his first appeal. Id. ¶¶ 7–8. We refuse to follow Brown in this regard, as it includes no discussion of double jeopardy law or the implications of its approach vis à vis double jeopardy. As such, Brown is suspect as authority on the proper application of law of the case in cases involving double jeopardy claims.

{15} The strength of double jeopardy protections also leads us to disagree that Defendant should be relegated to habeas corpus proceedings for his remedy. The State's theory is that requiring Defendant to pursue a habeas petition would promote judicial efficiency. While that might be true in the most general sense—in particular when further fact finding is necessary—we disagree that any efficiencies would be gained in this case. There are no facts to be found here. We are presented with a purely legal question. We see nothing to be gained by requiring a district court to consider the case only to be followed by an appeal presenting the exact issues before us now. Varela v. State , 1993–NMSC–030, ¶ 5, 115 N.M. 586, 855 P.2d 1050 (stating that a habeas proceeding, while supportable under the facts, was not efficient when the legal question was already before the Court).

{16} The...