State v. Hansen

• Decision Date: 17 March 2021
• Docket Number: No. A-1-CA-37899,A-1-CA-37899
• Citation: 495 P.3d 1173
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Justin HANSEN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

495 P.3d 1173

STATE of New Mexico, Plaintiff-Appellee,

v.Justin HANSEN, Defendant-Appellant.

No. A-1-CA-37899

Court of Appeals of New Mexico.

Filing Date: March 17, 2021

Certiorari Denied, August 27, 2021, No. S-1-SC-38778

Hector H. Balderas, Attorney General, Emily C. Tyson-Jorgenson, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Luz C. Valverde, Assistant Appellate Defender, Albuquerque, NM, for Appellant

IVES, Judge.

{1} Defendant Justin Hansen pleaded no contest to two second-degree felonies, attempted first-degree murder contrary to NMSA 1978, Sections 30-28-1(A) (1963) and 30-2-1(A)(2) (1994) and aggravated burglary with a deadly weapon contrary to NMSA 1978, Section 30-16-4(A) (1963). On appeal, Defendant argues that his convictions are barred by the statute of limitations and that, if his convictions stand, he should receive presentence confinement credit for time spent on house arrest. We affirm Defendant's convictions because he waived his statute of limitations defense by entering a no contest plea. We reverse Defendant's sentence because the district court erroneously denied him credit. We discuss Defendant's arguments pertaining to his convictions and sentence in turn, first describing the pertinent background and then explaining our analysis.

I. Defendant Waived His Statute of Limitations Defense

A. Background

{2} The event underlying this case is a horrific attack inflicted on Victim, a high school student at the time, with a shovel at her family's home in the fall of 2008. The police recovered DNA evidence from the scene of the crime. On December 28, 2010, the State filed a "John Doe" grand jury indictment describing the perpetrator's DNA profile and physical appearance. After the State obtained a sample of Defendant's DNA, which testing demonstrated matched the perpetrator's DNA profile described in the indictment, Defendant was arrested on July 6, 2017. The State subsequently filed an amended indictment naming Defendant and charging him with six crimes: kidnapping (physical injury) contrary to NMSA 1978, Section 30-4-1(A)(4) (2003), a first-degree felony; attempted first-degree murder contrary to Sections 30-28-1(A) and 30-2-1(A), a second-degree felony; aggravated burglary (deadly weapon) or, in the alternative, aggravated burglary (battery) contrary to Section 30-16-4, both second-degree felonies; aggravated battery with a deadly weapon or, alternatively, resulting in great bodily harm contrary to NMSA 1978, Section 30-3-5(A), (C) (1969), both third-degree felonies; aggravated assault (deadly weapon)¹ contrary to NMSA 1978, Section 30-3-2(A) (1963), a fourth-degree felony; and child abuse contrary to NMSA 1978, Section 30-6-1(D)(1) (2005, amended 2009) or, alternatively, Section 30-6-1(D)(2), both first-degree felonies under Section 30-6-1(E).

{3} Defendant moved to dismiss all counts charging him with second-, third-, or fourth-degree felonies, asserting that the statute of limitations had run on those counts before the State filed an indictment that named him as the defendant. See generally NMSA 1978, § 30-1-8(A), (B) (2005, amended 2009) (providing that "[n]o person shall be prosecuted, tried or punished in any court of this state unless the indictment is found or information or complaint is filed" within five years for third- or fourth-degree felonies and six years for second-degree felonies). The parties argued the motion in a hearing at which Defendant was present. The district court denied the motion but granted leave to file an application for interlocutory appeal, and Defendant petitioned this Court for interlocutory review or a writ of error. This Court declined to review the district court's order.

{4} Defendant and the State then entered an unconditional plea agreement in which Defendant agreed to plead no contest to the attempted first-degree murder and aggravated burglary with a deadly weapon charges, and the State agreed to dismiss all other charges. Defendant also agreed to "give[ ] up all motions, defenses, objections, or requests [that he] ha[d] made or could make concerning the [district c]ourt's entry of judgment ... if that judgment [was] consistent with [the] agreement." The district court approved the agreement and entered a judgment and sentence finding Defendant guilty of the two offenses to which he pleaded no contest.

B. Discussion

{5} A valid guilty or no contest plea "ordinarily constitutes a waiver of the defendant's right to appeal [a] conviction on other than jurisdictional grounds." State v. Hodge , 1994-NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1. Before a trial court may accept and enter judgment on a defendant's plea, however, the court must, as a matter of federal constitutional law, ensure that the plea is entered knowingly and voluntarily and that this is affirmatively shown by the record. See State v. Garcia , 1996-NMSC-013, ¶ 9, 121 N.M. 544, 915 P.2d 300. Adopting the "waiver approach" to statutes of limitations in State v. Kerby , 2007-NMSC-014, 141 N.M. 413, 156 P.3d 704, our Supreme Court held that criminal defendants may waive a statute of limitations defense but, as a matter of state law, may do so only if the defendant's relinquishment of the defense comports with similar requirements: "[T]he statute of limitations is a substantive right that may only be waived by a defendant after consultation with counsel, and only if the waiver is knowing, intelligent, and voluntary." Id. ¶ 18 ; see also State v. Pearson , 858 S.W.2d 879, 887 (Tenn. 1993) ("[A] waiver of the statute of limitations will not be presumed where there is no evidence in the record to indicate that the defendant was made aware of the issue."), cited approvingly by Kerby , 2007-NMSC-014, ¶ 17, 141 N.M. 413, 156 P.3d 704. Thus, the question here is whether the record affirmatively shows that Defendant knowingly and voluntarily waived the statute of limitations by entering his no contest pleas. We hold that it does.

{6} Defendant's challenge to the validity of his waiver is narrow. Defendant does not contend that he was unaware of the statute of limitations governing the two second-degree felonies to which he pleaded no contest or the legal effect of the statute on the State's ability to prosecute him for those offenses if the statute applied. Nor does Defendant assert that he did not understand the statute of limitations to be one of the "defenses" he expressly gave up in pleading no contest. The absence of such arguments is understandable; after all, Defendant litigated the statute's applicability below, attended a hearing on the issue, and unsuccessfully sought interlocutory review of the district court's adverse ruling in this Court.

{7} Consequently, the sole basis for Defendant's claim that he did not knowingly, intelligently, and voluntarily waive the statute of limitations is the novel argument that he could not do so because New Mexico's appellate courts have yet to address whether a "John Doe" DNA indictment qualifies as an "indictment" within the meaning of New Mexico's general criminal statute of limitations, Section 30-1-8. It is tempting to dismiss this argument out of hand. Cf. Halsey v. Clarke , 821 F. Supp. 1319, 1321 (D. Neb. 1993) ("All decisions to waive a jury trial are based upon some uncertainties of what the evidence will be at a future trial. A defendant simply cannot insist that unless he knows what evidence will be received there can be no voluntary waiver."), aff'd on other grounds , 5 F.3d 531 (8th Cir. 1993). But because of the importance of the substantive right involved and the dearth of New Mexico case law addressing waiver of the statute of limitations, we provide a more fulsome explanation of why Defendant's argument fails.

{8} In adopting the waiver approach, our Supreme Court struck a balance between the critical policies advanced by the statute of limitations and a recognition that the jurisdictional approach—an unyielding enforcement of the limitations time bar—may work to the detriment of the accused. See Kerby , 2007-NMSC-014, ¶ 15, 141 N.M. 413, 156 P.3d 704 (discussing the "jurisdictional approach," under which the statute of limitations "is a jurisdictional limit on the subject matter [jurisdiction] of a court that cannot be waived or forfeited"); id. (noting that one reason for shifts toward a waiver approach in other jurisdictions "appears to be [that] the primary policy of a criminal statute of limitations, to protect the defendant, is not served by strict adherence to a jurisdictional approach"); cf. Adams v. United States ex rel. McCann , 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942) ("What were contrived as protections for the accused should not be turned into fetters."). The waiver approach guarantees that all defendants have an opportunity to raise a statute of limitations defense if they wish to do so. Because the approach requires the statute to be knowingly, intelligently, and voluntarily waived, it operates as an absolute shield against the loss of that defense through inadvertence. See Kerby , 2007-NMSC-014, ¶ 19, 141 N.M. 413, 156 P.3d 704 ("[T]he protection of the statute of limitations is too important to be unintentionally lost." (internal quotation marks and citation omitted)). To further safeguard against unknowing loss of the statute's protection, our Supreme Court held in Kerby that waivers are valid only if they are made after consultation with counsel. Id. ¶ 18.

{9} At the same time, the Kerby Court recognized that the ability to waive objection to an untimely prosecution may enable a defendant to achieve an outcome more favorable, from the defendant's perspective, than that which could be obtained if the statute's bar was applied. See id. ¶ 15 ("[C]ourts have moved away from the jurisdictional view and toward deciding that a defendant may waive the defense if it is beneficial to him or her."). For example, a defendant who is fearful that a jury will...