State v. Gage

• Decision Date: 27 December 2001
• Docket Number: No. 22,099.,22,099.
• Citation: 131 N.M. 568,40 P.3d 1025
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Raymond Eric GAGE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

40 P.3d 1025

131 N.M. 568

STATE of New Mexico, Plaintiff-Appellee, v. Raymond Eric GAGE, Defendant-Appellant.

No. 22,099.

Court of Appeals of New Mexico.

December 27, 2001.

Certiorari Denied February 8, 2002.

Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.

Eric D. Dixon, Portales, NM, for Appellant.

Certiorari Denied, No. 27,315, February 8, 2002.

OPINION

SUTIN, Judge.

{1} Defendant Raymond Eric Gage was convicted and sentenced in magistrate court for driving while intoxicated, and upon his trial de novo in district court, he was convicted and sentenced again. On the district court remand to magistrate court to enforce the district court sentence, Defendant asked the magistrate court to reconsider his district court sentence in yet another hearing. The magistrate court denied Defendant's request, and Defendant appealed from that denial, seeking a de novo hearing in district court. The district court quashed the notice of appeal from magistrate court on the ground that the magistrate court order was not an appealable order.

{2} We hold the magistrate court properly denied Defendant's motion for reconsideration because the magistrate court did not have lawful authority to modify or supersede the district court sentence. Having requested the magistrate court to exercise authority it did not have, Defendant had no lawful basis on which to appeal the magistrate court's denial of his motion for reconsideration.

BACKGROUND

{3} Defendant was convicted by a jury in magistrate court for aggravated driving while intoxicated and speeding. He was sentenced by the magistrate court to the statutory term of 364 days incarceration with 184 days suspended, for a sentence of incarceration of 180 days or six months. Defendant appealed de novo to the district court and was again convicted by a jury for driving while intoxicated and speeding. He was sentenced by District Judge Gary Clingman to the statutory term of 364 days with all but 270 days suspended, resulting in a sentence of incarceration of 270 days or nine months.

{4} Defendant appealed to this Court the district court conviction and sentence. We affirmed in a memorandum opinion. The Supreme Court denied Defendant's certiorari petition. We issued a mandate to the district court on September 18, 2000, directing the clerk of the district court "to issue any commitment necessary for the execution of your judgment and sentence."

{5} Upon the district court's receipt of the mandate of this Court, the district court remanded the case to magistrate court. See Rule 6-703(J), (O), (P) NMRA 2001.¹ The magistrate court entered an order on December 22, 2000, stating:

Upon the mandate received from the District Court....

[IT] IS HEREBY ORDERED, according to the mandate that the prior sentence... will be carried out as follows:

....

Defendant is to report to the Lea County Detention Facility ... [on] December 27, 2000 to serve 270 days incarceration.

{6} On December 27, 2000, Defendant filed a motion in magistrate court to reconsider the sentence. The motion, entitled Motion to Reconsider Sentence Imposed (motion to reconsider), sought a new sentencing hearing because

[T]he District Court increased the sentence by three months without cause or justification based on the fact that Mr. Gage had requested a jury trial in the matter and apparently it was the District Court's policy at the time to enhance sentences whenever a jury trial was requested in the matter.

The magistrate court denied the motion to reconsider by a handwritten notation on the motion, "Motion Denied." The record does not reflect a hearing on the motion.

{7} Defendant appealed to the district court the magistrate court denial of his motion for reconsideration. He requested a jury trial. The State filed a response to the motion to reconsider in the district court. Without a hearing, on January 23, 2001, Judge Clingman entered an Order Quashing Notice of Appeal in which he determined the denial of Defendant's motion for reconsideration by the magistrate court did not constitute an appealable order.

The Intervening Supreme Court Opinion of State v. Bonilla

{8} Defendant's positions on appeal arise from an opinion of the New Mexico Supreme Court issued in December 2000. The Supreme Court ruled unconstitutional a sentencing policy and practice of the very judge who sentenced Defendant. It is unclear when Defendant became aware of this Supreme Court opinion. We discuss the circumstances in more detail for a complete picture of the background of this case.

{9} On December 12, 2000, the Supreme Court filed State v. Bonilla, 2000-NMSC-037, 130 N.M. 1, 15 P.3d 491. In Bonilla, the trial judge, who was Judge Clingman, apparently just before sentencing the defendant, "announced that it was the general policy of the court that `if a person is found guilty of a crime in this court by a jury, that the statutory penalty be imposed.'" Id. ¶ 4. The Supreme Court determined that the defendant was sentenced under that policy and held the sentencing unconstitutionally penalized him for exercising his Sixth Amendment right to a jury trial. Id. ¶¶ 10, 13, 15. Bonilla was first published in the January 11, 2001, issue of the State Bar Bulletin. 40 N.M. Bar Bul. 20 (Jan. 11, 2001).

{10} Defendant's reliance on Bonilla first surfaces in the record in Defendant's March 19, 2001, docketing statement filed in this Court. In the docketing statement, Defendant states Judge Clingman entered an order on January 23, 2001, quashing Defendant's notice of appeal, and then further states:

It was learned by counsel for Defendant much later, that Judge Clingman had a "policy" of imposing the statutory penalty when the Defendant was found guilty by a jury. Mr. Gage's Magistrate Court sentence had been increased from six months to nine months by Judge Clingman. This three month increase in the sentence was not merited by the record. The District Attorney's office asked only that the six month sentence be imposed. Further, Mr. Gage indicated that he was required to aid his mother on a frequent basis and would not be able to render this aid while incarcerated. Mr. Gage also indicated that he had been going to Alcoholics Anonymous and was attempting to rehabilitate himself. The increased sentence was an apparent result of Judge Clingman's "policy" of punishing Defendant[s] who choose to exercise their constitutional right to trial by jury.

(Emphasis added.) It would appear from these statements Defendant and his counsel became aware of the Bonilla decision after Judge Clingman's January 23, 2001, order. It is unclear from the record and the briefs whether Defendant or his counsel were aware of the Bonilla decision when Defendant filed his motion to reconsider in magistrate court on December 27, 2000. He may not have been, since the decision did not appear in the Bar Bulletin until January 11, 2001.

{11} In his brief-in-chief on appeal, citing Bonilla, Defendant states, "[a]pparently, Judge Clingman had an oral policy of enhancing the sentence[ ]of any Defendant who chose to exercise his constitutional right to jury trial." Defendant argues that, based on the circumstances of the sentencing, including the prosecutor's "emphasis three different times in his statement to the court that Mr. Gage had exercised his constitutional right to trial by jury[,] [t]he implication was clear, the court should punish Mr. Gage for exercising his constitutional rights." Defendant suggests a court policy of sentencing based on exercising the right to demand a jury trial was enforced against Defendant, shown by the "enhanced sentence" imposed by Judge Clingman.

Defendant's Present Appeal to This Court

{12} Defendant appeals to this Court from three separate court actions: (1) this Court's September 18, 2000, mandate to the district court; (2) the magistrate court's December 22, 2000, denial of Defendant's motion to reconsider; and (3) the district court's January 23, 2001, order quashing Defendant's appeal. Defendant seeks reversal on two distinct points. His first point, unrelated to Bonilla, is that the district court erred in quashing the appeal on the ground the denial of his motion to reconsider was not an appealable order. This point necessarily raises the issue of whether the magistrate court had lawful authority to modify or supersede the district court sentence on remand under a mandate from the district court to enforce the sentence of the district court.

{13} Defendant's second point is based on the policy and practice that existed when the defendant in Bonilla was sentenced in September 1997. See id. ¶ 4. Defendant suggests Judge Clingman employed the same or a similar policy in punishing Defendant for exercising his constitutional right to trial by jury, and Defendant wants an evidentiary hearing on that issue. In any such hearing, Defendant must rely either (1) upon evidence of the existence of such a policy when Defendant was sentenced on March 31, 2000, some two and one-half years after Mr. Bonilla was sentenced, or (2) from some presumption Defendant may contend should be applied based on Bonilla. Such a presumption would be that the policy that existed in 1997, or some similar policy, must have continued to exist up to and during Defendant's March 31, 2000, sentencing. Defendant nowhere elaborates on what proof or presumption he may rely if the issue of the existence of such a policy were to be heard as he requests.

DISCUSSION

Standard of Review

{14} "Interpretation and application of the law are subject to a de novo review." State v. Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852.

Defendant Failed to Seek Relief in the District Court

{15} Under Rule 5-801(B) NMRA 2001, Defendant had ninety days from this Court's September 18, 2000, mandate to the district court within which to seek a modification of his sentence in district court. His deadline, therefore, was ...