State v. Hernandez

• Decision Date: 22 June 2001
• Docket Number: No. 21, No. 120., No. 119
• Citation: State v. Hernandez, 30 P.3d 387, 130 N.M. 698, 2001 NMCA 57 (N.M. App. 2001)
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Frank HERNANDEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

30 P.3d 387

130 N.M. 698

2001 NMCA 57

STATE of New Mexico, Plaintiff-Appellee, v. Frank HERNANDEZ, Defendant-Appellant.

Nos. 21,119, 21,120.

Court of Appeals of New Mexico.

June 22, 2001.

Certiorari Denied August 6, 2001.

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

Phyllis H. Subin, Chief Public Defender, Thomas DeMartino, Assistant Public Defender, Albuquerque, NM, for Appellant.

Certiorari Denied, No. 27,025, August 6, 2001.

OPINION

BUSTAMANTE, Judge.

{1} This case presents an issue of first impression in New Mexico: Whether the offense/conviction chronological sequence required by State v. Linam, 93 N.M. 307, 600 P.2d 253 (1979) and Koonsman v. State, 116 N.M. 112, 860 P.2d 754 (1993) for imposition of habitual offender penalties applies to drunk driving sentencing under NMSA 1978, § 66-8-102(E), (F), (G) (1999). We hold that it does not, and affirm Defendant's sentence and judgment as a fourth degree felony pursuant to Section 66-8-102(G).

FACTS AND PROCEEDINGS

{2} There is no conflict concerning the operative facts. Frank Hernandez (Defendant) was indicted on January 29, 1999, for aggravated driving while under the influence of alcohol (DWI), reckless driving, and speeding following an incident which occurred on December 12, 1998. This case was filed as Dona Ana County Cause No. CR-99-67. While this case was pending, Defendant was arrested and indicted for DWI and other traffic violations for an incident which occurred on February 8, 1999. This second case was filed as Dona Ana County Cause No. CR-99-138.

{3} Defendant entered into a separate "DWI Repeat Offender Plea And Disposition Agreement" in each of the cases on August 4, 1999. In CR-99-67, Defendant agreed to plead guilty to the December 12, 1998 occurrence of DWI and also agreed to admit that he had been validly convicted of aggravated DWI on August 26, 1994, for an offense committed the same day. He also agreed that he had been convicted of DWI on September 13, 1994, for an incident which occurred on August 19, 1994. In CR-99-138, Defendant agreed to plead guilty to the February 1999 offense as well as the prior DWI convictions listed above. In addition, Defendant agreed that he had been validly convicted of aggravated DWI in CR-99-67. As part of the plea agreement, the State and Defendant both reserved the "right to appeal the ruling of the trial court concerning the determination of the number of countable prior DWI convictions for enhancement purposes."

{4} After receiving written and oral argument, the trial court entered an order in each case deciding that "crime-convictions sequence for DWI cases do not apply for purposes of enhancement." As a result, in Cause No. CR-99-67, the trial court treated the aggravated DWI as a third conviction and sentenced Defendant to a term of 364 days and a fine of $750 with ninety days to be served in the Dona Ana County Detention Center and the remainder suspended. In Cause No. CR-99-138, the plea was treated as a fourth conviction and Defendant was sentenced as a fourth degree felon, pursuant to Section 66-8-102(G), to a term of eighteen months and one year of parole thereafter.

DISCUSSION

{5} "Interpretation of a statute is an issue of law, not a question of fact. We review questions of law de novo." State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). When interpreting a statute we must ascertain and give effect to the intent of the legislature. Id. "[W]e look to the object the legislature sought to accomplish and the wrong it sought to remedy." Id. (internal quotation and citation omitted).

{6} Defendant maintains that under the Linam /Koonsman crime-conviction sequence schema, his conviction for the February 1999 DWI should be treated as a second offense for purposes of imposing any enhanced punishment. If we were dealing with a non-DWI felony offense, he would probably be correct. Defendant's offenses and convictions can be charted as follows:

Offense Date Conviction Date 1. August 26, 1994 August 26, 1994 2. August 19, 1994 September 13, 1994 3. December 12, 1998 August 4, 1999 4. February 8, 1999 August 4, 1999

Applying the strict holding in Koonsman that "not only must all prior convictions precede commission of the principal offense, but each offense and conviction must occur in chronological sequence," id. at 113, 860 P.2d at 755, it is accurate to assert that there was only one crime-conviction (the August September 1994 offense and conviction) in proper sequence prior to the February August 1999 offense and conviction. The August 26, 1994 crime-conviction cannot be counted because it fell between the August 19 offense and the related September 1994 conviction. The December 1998 offense cannot be counted because there was no conviction for it before the February 1999 offense was committed.

{7} This analysis is consistent with the result reached in Koonsman where a September 1966 conviction for a November 1965 offense could not be counted for enhancement purposes because the November offense fell between an offense in April 1965 and the resultant January 1966 conviction for that April offense. Id. at 114, 860 P.2d at 756.

{8} Defendant's argument is straightforward. He asserts that there is nothing to distinguish the DWI sentence enhancement statutes from the felony habitual offender statute either as to structure or the policy interests served by increasing punishment for repeated offenses. Therefore, Defendant argues, given the strength of the Linam /Koonsman holdings in New Mexico sentencing law, the same approach should be applied.

{9} There is some indication that New Mexico courts have operated on the assumption that Linam /Koonsman does apply to DWI sentencing. For example, in the consolidated cases denominated State v. Anaya, 1997-NMSC-010, ¶ 5, 123 N.M. 14, 933 P.2d 223, our Supreme Court noted that the State had proven to the trial court that one of the defendants "had ... four prior DWI convictions in sequence within the meaning of State v. Linam [.]" One of Anaya's arguments in the case was that the State had failed to prove three prior DWI convictions in sequence as against him "in order to enhance the charges to a felony." Anaya, 123 N.M. 14,933 P.2d 223, 1997-NMSC-010, ¶ 7. Without discussing the Linam /Koonsman issue further, the Supreme Court affirmed Anaya's sentence for felony DWI. Interestingly, in her dissent, Justice Minzner stated that she felt Anaya should be resentenced for misdemeanor DWI because the State "conceded that it failed to prove three prior DWI convictions in sequence." Anaya, 123 N.M. 14,933 P.2d 223, 1997-NMSC-010, ¶ 73 (Minzner, J., concurring in part and dissenting in part). Because there is no other discussion, substantive or otherwise, about the issue in Anaya, the case provides no guidance as to the Supreme Court's view of the issue.

{10} We start our analysis with the legislation, noting that the DWI and habitual offender statutes are structured somewhat similarly. The felony habitual offender statute currently provides in pertinent part:

A. For the purposes of this section, "prior felony conviction" means:

(1) a conviction for a prior felony committed within New Mexico whether within the Criminal Code or not; or

(2) any prior felony for which the person was convicted other than an offense triable by court martial if:

(a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;

(b) the offense was punishable, at the time of conviction, by death or a maximum term of imprisonment of more than one year; or

(c) the offense would have been classified as a felony in this state at the time of conviction.

B. Any person convicted of a noncapital felony ... who has incurred one prior felony conviction which was part of a separate transaction or occurrence or conditional discharge ... is a habitual offender and his basic sentence shall be increased by one year, and the sentence imposed by this subsection shall not be suspended or deferred.

C. Any person convicted of a noncapital felony ... who has incurred two prior felony convictions which were parts of separate transactions or occurrences or conditional discharge ... is a habitual offender and his basic sentence shall be increased by four years, and the sentence imposed by this subsection shall not be suspended or deferred.

D. Any person convicted of a noncapital felony ... who has incurred three or more prior felony convictions which were parts of separate transactions or occurrences or conditional discharge ... is a habitual offender and his basic sentence shall be increased by eight years, and the sentence imposed by this subsection shall not be suspended or deferred.

NMSA 1978, § 31-18-17 (1993). The DWI penalty statute currently provides:

E. Every person under first conviction under this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than ninety days or by a fine of not more than five hundred dollars ($500), or both; provided that if the sentence is suspended in whole or in part or deferred, the period of probation may extend beyond ninety days but shall not exceed one year. Upon a first conviction under this section, an offender may be sentenced to not less than forty-eight hours of community service or a fine of three hundred dollars ($300). The offender shall be ordered by the court to participate in and complete a screening program described in Subsection H of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a "DWI school", approved by the traffic safety bureau of the state highway and transportation department and also may be required to participate in other rehabilitative services as the court shall determine to be necessary. In addition to those penalties, when an offender commits aggravated

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