State v. Frawley

• Decision Date: 25 October 2007
• Docket Number: No. 29,011.,29,011.
• Citation: 2007 NMSC 057,172 P.3d 144
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Douglas FRAWLEY, Defendant-Respondent.
• Court: New Mexico Supreme Court

172 P.3d 144

2007 NMSC 057

STATE of New Mexico, Plaintiff-Petitioner, v. Douglas FRAWLEY, Defendant-Respondent.

No. 29,011.

Supreme Court of New Mexico.

October 25, 2007.

Gary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Petitioner.

John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Chief Justice.

{1} This case is before us for a second time, after remand from the United States Supreme Court for reconsideration in light of its recent opinion in Cunningham v. California, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). The issue we are asked to revisit is whether alteration of a defendant's basic sentence upon a finding by the judge of aggravating circumstances surrounding the offense or concerning the offender, NMSA 1978, § 31-18-15.1(A) (1993), violates the federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution. We conclude Cunningham requires that we declare Section 31-18-15.1 facially unconstitutional.

I. BACKGROUND

{2} Defendant Douglas Frawley was convicted of two third-degree felony counts of negligent child abuse, see NMSA 1978, § 30-6-1(C) (1997, prior to amendments through 2005), and one misdemeanor count of attempting to commit custodial interference, see NMSA 1978, §§ 30-4-4(B) (1989), 30-28-1(D) (1963). The basic sentence for a third-degree felony is three years of imprisonment, NMSA 1978, § 31-18-15(A)(5) (1999, prior to amendments through 2005), while a misdemeanor may be punished by less than one year of imprisonment, NMSA 1978, § 31-19-1(A)(1984).

{3} Our felony-sentencing statute provides that the basic sentence for a noncapital felony "shall be imposed . . . unless the court alters such sentence pursuant to" one of four other enumerated statutes. Section 31-18-15(B) (1999, prior to amendments through 2005). One of those enumerated statutes allows for alteration of the basic sentence "upon a finding by the judge of any mitigating or aggravating circumstances surrounding the offense or concerning the offender." NMSA 1978, § 31-18-15.1(A) (1993). "If the court determines to alter the basic sentence, it shall issue a brief statement of reasons for the alteration and incorporate that statement in the record." Id. The amount of the alteration up or down, however, may not be greater than one-third of the basic sentence. Section 31-18-15.1(C). Thus, for a third-degree felony a judge may sentence an offender anywhere from two to four years provided that if the sentence is anything other than three years, the judge must incorporate his or her findings in the record when deviating from the basic sentence. In this case, after finding four aggravating circumstances the judge added one year to each of Frawley's third-degree felony convictions. The judge ran Frawley's sentences consecutively, sentencing him to a total term of imprisonment of nine years less one day.¹

{4} While Frawley's case was on direct appeal, the United States Supreme Court published Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court held that a defendant's Sixth Amendment right to a trial by jury was violated when the trial court sentenced the defendant to an "exceptional sentence" of 90 months after judicially determining that the defendant had acted with "deliberate cruelty," even though the defendant only admitted in his plea agreement to facts subjecting him to a maximum sentence of 53 months. Id. at 298, 305, 124 S.Ct 2531. Based on Blakely, Frawley argued to the Court of Appeals that the alteration of his basic sentence was unconstitutional. State v. Frawley, 2005-NMCA-017, ¶ 1, 137 N.M. 18, 106 P.3d 580. The Court of Appeals agreed, holding that Frawley's "enhanced" sentence was unconstitutional because the aggravating circumstances the judge relied on in altering Frawley's basic sentence were not found by a jury beyond a reasonable doubt. See id. ¶ 14. We granted certiorari. 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74.

{5} While Frawley's case was pending review in this Court, we published State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754. Relying heavily on the California case of People v. Black I, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534 (2005), vacated, ___ U.S. at ___, 127 S.Ct. 1210, 167 L.Ed.2d 36 (2007), aff'd on remand, 41 Cal.4th 799, 62 Cal.Rptr.3d 569, 161 P.3d 1130 (2007), we held in Lopez that in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which was published soon after Frawley and expanded on Blakely, the Court of Appeals had incorrectly decided Frawley. Lopez, 2005-NMSC-036, ¶ 36, 138 N.M. 521, 123 P.3d 754. Because of our holding in Lopez, we issued a Dispositional Order of Reversal in Frawley's case, reversing the Court of Appeals and affirming the trial court's alteration of Frawley's basic sentence. Frawley sought certiorari in the United States Supreme Court. While his petition was pending, the Supreme Court published Cunningham, holding that Black I had wrongly interpreted federal constitutional law. See Cunningham, ___ U.S. at ___, 127 S.Ct. at 871 & n. 16. Shortly afterward, the Supreme Court granted Frawley's petition, vacated our judgment, and remanded the case to us for reconsideration in light of Cunningham. We conclude that Frawley was unconstitutionally sentenced because the trial court judge found additional facts before sentencing Frawley above the basic sentence mandated by statute.

II. HISTORICAL OVERVIEW

{6} Having provided a cursory look at the factual and procedural background of this case, we conduct a deeper historical overview of the relevant statutory and case law. No point of law has longer been established in New Mexico than the rule that the "prescription of the mode of punishment [is] preeminently [a] rightful subject[ ] of legislati[on]." Bray v. United States, 1 N.M. (Gild.) 1, 2 (Terr.1852), available at 1852 WL 1669, at *1. Of course, a legislature's prerogative to proscribe punishment for criminal activity is subject to constitutional constraints. Recently, modern sentencing statutes and their concern for parity in sentencing like offenders under like circumstances have implicated the Sixth Amendment. Prior to these modern statutes, sentencing would typically occur by a judge exercising his or her discretion to sentence an offender to a determinate amount within a range set by statute. Although, in exercising this discretion, a judge would necessarily consider facts extraneous to the verdict itself, there was no Sixth Amendment problem since every fact necessary for imposition of any sentence within the range set by statute had already been found by a jury or admitted in a plea. See Rita v. United States, ___ U.S. ___, ___, 127 S.Ct. 2456, 2484-85, 168 L.Ed.2d 203 (2007) (Souter, J., dissenting).

A. New Mexico's Criminal Sentencing Act and Amendments

{7} With the passage of the Criminal Sentencing Act (CSA), New Mexico adopted such a discretionary sentencing scheme in 1977.² 1977 N.M. Laws, ch. 216, §§ 1-19. For noncapital felonies, the CSA established ranges of imprisonment and required the judge to impose a "basic sentence" of a "definite term" within that range. Id. § 4(A). In exercising this discretion, a judge could consider any facts he or she deemed relevant-including those not presented to the jury. See State v. Montoya, 91 N.M. 425, 427, 575 P.2d 609, 611 (Ct.App.1978) ("[A] sentencing judge has wide discretion in the sources and types of information used in determining the punishment to be imposed."). For example, although the CSA required a judge to impose a basic sentence for a third-degree felony, the judge was free to fully exercise his or her discretion in setting the basic sentence at anywhere between two and ten years. CSA § 4(A)(3). As enacted, the CSA posed no Sixth Amendment problem since the judge's discretion to establish the basic sentence was authorized solely by a jury verdict or plea.

{8} In 1979, the Legislature amended portions of the CSA. 1979 N.M. Laws, ch. 152, at §§ 1-4. The amendments, with a few others made later not pertinent to the case at hand, remain effective. Most significantly, the amendments changed the way in which the basic sentence is determined. Instead of the judge exercising discretion to choose a basic sentence from a given range, the basic sentence for each degree of felony is now set at an exact amount. Section 31-18-15(A). As it applies to this case, instead of being allowed to choose a basic sentence anywhere from two to ten years imprisonment for a third-degree felony, a judge is now required to impose a basic sentence of three years imprisonment-no more, no less. Section 31-18-15(A)(5), (B). At the same time the amendments mandated the imposition of set terms of imprisonment, another provision added in 1979 allowed the sentencing judge to alter the basic sentence upward or downward by one-third "upon a finding by the judge of any mitigating or aggravating circumstances surrounding the offense or concerning the offender." Section 31-18-15.1(A).

B. The Effect of the Apprendi Line of Cases on Modern Sentencing Schemes

{9} In 2000, the United States Supreme Court published Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), setting off a tumult in modern sentencing schemes throughout the nation. In Apprendi, the defendant pled guilty to, among other things, the crime of possessing a firearm for an unlawful purpose, a second-degree offense in New Jersey. Id. at 469-70, 120 S.Ct. 2348. New Jersey law provided for a sentencing range of five to ten years for a second-degree offense. Id. at 470, 120 S.Ct. 2348. A hate-crime statute allowed the sentencing court to impose an "enhanced" sentence of up to twenty years if the defendant's possession of a firearm was for a biased purpose. See id...