State v. Graham

• Decision Date: 02 September 2003
• Docket Number: No. 22,913.,22,913.
• Citation: 134 N.M. 613,81 P.3d 556
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Antonio GRAHAM, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

81 P.3d 556

134 N.M. 613

STATE of New Mexico, Plaintiff-Appellee, v. Antonio GRAHAM, Defendant-Appellant.

No. 22,913.

Court of Appeals of New Mexico.

September 2, 2003.

Certiorari Granted November 3, 2003.

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

John B. Bigelow, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 28,286, November 3, 2003.

OPINION

KENNEDY, Judge.

{1} Antonio Graham (Defendant) appeals his convictions for trafficking cocaine by possession with intent to distribute, contrary to NMSA 1978, § 30-31-20 (1990); tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963); child abuse (no death or great bodily harm), contrary to NMSA 1978, § 30-6-1 (2001); possession of marijuana over one ounce, less than eight ounces, contrary to NMSA 1978, § 30-31-23 (1990); possession of drug paraphernalia, contrary to NMSA 1978, § 30-31-25.1 (1997); and trafficking a controlled substance (cocaine) by distribution, contrary to Section 30-31-20(B)(1). Defendant was also adjudged guilty of being a habitual offender with three prior offenses. His sentence, including habitual offender enhancements, is just days shy of thirty-nine and a half years.

{2} Defendant argues that: (1) the evidence presented at trial does not support an eight-year habitual-offender enhancement on each of his felony convictions, (2) the evidence was insufficient to support his convictions, (3) he was denied the right to a speedy trial, (4) the district court erred in not dismissing the charges against him because the evidence used against him was the product of an illegal arrest, and (5) he did not receive effective assistance of counsel. With the exception of the first two issues, Defendant appeals his sentence and his convictions pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct.App.1985).

{3} We find that there was insufficient evidence to support Defendant's conviction for negligent child abuse. We therefore reverse the district court on that issue and remand for further proceedings consistent with this opinion. We cannot determine that the enhancement of Defendant's sentence incorrectly calculated his prior offenses under State v. Linam, 93 N.M. 307, 600 P.2d 253 (1979). We further find the remainder of Defendant's contentions to be without merit and affirm the district court.

ENHANCEMENT OF DEFENDANT'S SENTENCE

{4} Defendant argues that his thirty-nine and a half year sentence in this case is based on insufficient evidence that there were three visible prior felony convictions to trigger an eight-year habitual offender enhancement on each of his felony convictions when in fact, there were only two, which only supports a four-year enhancement on each count. Defendant concedes that this issue was not raised below; thus, the record on appeal is inadequate with regard to this issue. He requests a remand for a further hearing. Defendant's argument here is not sufficient to justify such an action.

{5} "This court has held that a convicted defendant may challenge the legality of his sentence for the first time on appeal, because the trial court has no jurisdiction to impose an illegal sentence." State v. Bachicha, 111 N.M. 601, 605, 808 P.2d 51, 55 (Ct.App.1991); see also Koonsman v. State, 116 N.M. 112, 113, 860 P.2d 754, 755 (1993) (granting petition to correct illegal sentence where Linam sequence was not followed); State v. Crespin, 96 N.M. 640, 643, 633 P.2d 1238, 1241 (Ct.App.1981) (stating that the trial court may not impose a penalty not authorized by the legislature). However, there must be some solid basis for challenging the sentence in order for an appellate court to take action.

{6} The State sought to have Defendant's sentence in this case enhanced by eight years on each felony count as Defendant was a habitual offender with three prior felony convictions. At his sentencing, Defendant admitted having been convicted of three prior felonies as alleged in the State's supplemental criminal information. Defendant's trial counsel stated that he knew of no reason Defendant should not plead to the habitual information. The State submitted three judgment and sentence forms, showing the sequence noted below. Defendant supplemented the record with the criminal information filed in case number 91-304; this information was not available to the district court at the time of sentencing in this case. Thus, the sequence of conviction/offense is as follows:

Case Number Offense Date Conviction Date 91-124 11 October 1990 91-304 2 September 1991 26 May 1992 93-228 28 June 1993 18 October 1995

Unfortunately, the information we possess indicates when the crime was committed in 91-304, but we are still left without a date of conviction in 91-124. See State v. Castillo, 105 N.M. 623, 624, 735 P.2d 540, 541 (Ct.App. 1987) (stating that date of conviction, not sentencing, is operative in Linam calculation). In Linam, this Court first held that "in a proceeding to enhance [a] sentence for a third or fourth felony, each felony must have been committed after conviction for the preceding felony." Linam, 93 N.M. at 309, 600 P.2d at 255.

{7} In its supplemental information at trial, and now in its brief, the State urges us that the conviction in case number 91-124 dates from August 12, 1991. The face of the judgment itself states that the sentence was imposed on October 21, 1991, and that it was filed November 20, 1991. The State is correct that the record contains nothing to show that the date of conviction is anything other than what the State says it is—August 12, 1991. The date of Defendant's conviction in 91-124, not the date of sentencing, is crucial because the date of the verdict or plea determines the date of conviction. See Castillo, 105 N.M. at 624, 735 P.2d at 541.

{8} All of Defendant's prior convictions were apparently from the Otero County district court; if Defendant has evidence that he did not plead guilty or was convicted on August 12 and feels that a closer review or correction of sentence is needed, Defendant should seek any further remedy by post-conviction proceedings. See Rule 5-802 NMRA 2003; see also Patterson v. LeMaster, 2001-NMSC-013, ¶ 1, 130 N.M. 179, 21 P.3d 1032. Cf. State v. Herrera, 2001-NMCA-073, ¶ 37, 131 N.M. 22, 33 P.3d 22 (indicating that when the record does not support the factual basis for a contention that may be raised for the first time on appeal, the preferred method of resolution of the issue is in habeas corpus proceedings). There being no evidence before us to indicate that the district court entered an illegal sentence, we affirm the court's enhancement of Defendant's sentence.

BACKGROUND FOR REMAINING ISSUES

{9} On September 1, 2000, Defendant was arrested by Officers Lee Wilder and Dusty Collins outside the home at which he had been living for a little over a year. The officers had a warrant for Defendant's arrest concerning other matters, and had driven to his house to effect his arrest. As the officers approached Defendant's house, Defendant, Nicole Norris, and Latonia Thompkins were leaving to go to Ms. Thompkins' residence. Defendant and his companions left Defendant's house almost immediately after two male visitors with whom Defendant and Ms. Thompkins had been smoking marijuana in Defendant's living room. Defendant was getting in Ms. Norris' truck when the officers approached. On seeing them, Defendant appeared to drop an article behind the truck's seat. Later investigation revealed packets of drugs behind the seat, below where Defendant had rested his hand. Ms. Thompkins and Ms. Norris testified that on the day of Defendant's arrest and on previous occasions, they had purchased drugs from Defendant.

{10} Incident to Defendant's arrest, the officers approached his house. Defendant's girlfriend, Amanda Kelly, who resided in the house along with Defendant and their two infants, met the officers at the front door. As he waited by the front door, Officer Wilder smelled a strong odor of burnt marijuana coming from inside the house. Ms. Kelly did not permit the officers to enter the house. Thus rebuffed, the officers obtained a search warrant, which they served approximately an hour later. When the officers went inside the house, they noted that the house was dirty. Officer Collins searched the house, including a dresser in the master bedroom. In the back of its top left-hand drawer, he found some marijuana and thirteen rocks of crack cocaine. A marijuana pipe was in the right-hand drawer. Some rolling papers, marijuana seeds, and residue were on top of the dresser. A crib was in the master bedroom. Officer Collins found a bud of marijuana in the crib under a stuffed animal. In the living room, Officer Collins found a marijuana "roach" on the floor in front of the sofa in an area he said was accessible to Defendant's and Ms. Kelly's two children who were inside the house.

{11} Ms. Kelly briefly testified at trial. Virtually the first order of business for the State when she took the stand was to present and seek the admission of a photograph of her children and establish their young ages. When asked what she knew about marijuana, Ms. Kelly stated that she did not know that the marijuana that was found on the floor and in the crib was there. When the prosecution asked how she felt about it, she said, "I don't know. I—I just wish [Defendant] hadn't had done it." In response to a later question, she stated that her children "probably would have ate [sic] it and got sick" if they had gotten hold of the marijuana.

SUFFICIENCY OF THE EVIDENCE

Standard of Review

{12} In reviewing a sufficiency of evidence claim, "[w]e view the evidence in the light most favorable to supporting the verdict and resolve all conflicts and indulge all inferences in favor of upholding the verdict." State...