State v. Lacey, 21,502.

• Decision Date: 23 January 2002
• Docket Number: No. 21,502.,21,502.
• Citation: 2002 NMCA 32,131 N.M. 671,41 P.3d 952
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. George LACEY, Defendant-Appellant.

41 P.3d 952

131 N.M. 671

2002 NMCA 32

STATE of New Mexico, Plaintiff-Appellee, v. George LACEY, Defendant-Appellant.

No. 21,502.

Court of Appeals of New Mexico.

January 23, 2002.

Certiorari Denied March 7, 2002.

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

Phyllis H. Subin, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 27,358, March 7, 2002.

OPINION

PICKARD, Judge.

{1} This case is the latest in a series of cases involving the double use of prior convictions to increase punishment. In State v. Keith, 102 N.M. 462, 463-65, 697 P.2d 145, 146-48 (Ct.App.1985), we held that a prior armed robbery conviction could not be used to raise the defendant's underlying armed robbery conviction from a second degree felony to a first degree felony, and then be used to further enhance the defendant's sentence under the general habitual offender statute. In State v. Haddenham, 110 N.M. 149, 151-54, 793 P.2d 279, 281-84 (Ct.App.1990), we held that a prior felony conviction could not be the basis for a conviction of felon in possession of a firearm, and then be used to further enhance the defendant's sentence under the habitual offender statute. This case requires us to decide whether a prior trafficking conviction may be used to set Defendant's underlying conspiracy to commit trafficking conviction as a second degree felony, and then be used to enhance Defendant's sentence under the habitual offender statute. Notwithstanding the differences in the pertinent statutory language, we hold that it may not be so used.

{2} Defendant was convicted of one count of a second offense of trafficking a controlled substance and one count of conspiracy to commit that offense. He argues that the trial court's use of his 1989 trafficking conviction to prove the charge of conspiracy to commit a first degree felony, as well as to enhance his conspiracy sentence through the habitual offender statute, was an impermissible double use of the prior conviction. Defendant further argues that the trial court erred in admitting evidence of other drug crimes at his trial. Finally, Defendant argues that defense counsel's failure to move to sever the counts constituted ineffective assistance of counsel. We determine that the trial court improperly used Defendant's prior trafficking conviction both to prove the crime of conspiracy to commit a first degree felony and to enhance Defendant's conspiracy sentence under the habitual offender statute. We affirm the remaining issues.

FACTS

{3} At sentencing, the court elevated Defendant's current trafficking charge from a second degree to a first degree felony based on a prior trafficking conviction in 1989. The trial court then determined that the conspiracy charge was a second degree felony because the underlying crime of trafficking was a first degree felony. The penalty for conspiracy is based on the severity of the underlying charge. See NMSA 1978, § 30-28-2(B) (1979). After finding that mitigating circumstances existed, the court reduced Defendant's trafficking sentence from eighteen to twelve years and reduced his conspiracy sentence from nine to six years.

{4} The State additionally sought to sentence Defendant as a habitual offender. At the sentencing hearing, Defendant admitted that he had three prior felony convictions. Because the prior 1989 trafficking conviction had already been used to enhance the trafficking charge from a second degree to a first degree felony under the trafficking statute, the court, in accordance with Keith, did not use it to enhance Defendant's trafficking sentence under the habitual offender statute. Instead, the court imposed a habitual sentence of four years, instead of eight, on the trafficking charge based only on Defendant's two other prior convictions. However, the court used all three prior convictions, including the 1989 trafficking conviction, to impose an eight year habitual sentence on the conspiracy charge and sentenced Defendant to a total of sixteen years for trafficking and fourteen years for conspiracy, to be served concurrently.

DISCUSSION

Habitual Offender Statute Enhancement

{5} In New Mexico, the court's sentencing authority is limited by statute. Keith, 102 N.M. at 463, 697 P.2d at 146. The legislature must give express authorization for a sentence to be imposed. Id. Imposition of multiple punishments for the same conduct violates double jeopardy unless the legislature intended for multiple punishments to be applied. See Haddenham, 110 N.M. at 151-52, 793 P.2d at 281-82; Keith, 102 N.M. at 463, 697 P.2d at 146.

{6} In determining the intent of the legislature, we rely primarily on the language of the statute. State v. Alderete, 88 N.M. 150, 151, 538 P.2d 422, 423 (Ct.App. 1975). Statutes authorizing a more severe punishment for subsequent offenses are deemed highly penal and merit a strict construction. Keith, 102 N.M. at 465, 697 P.2d at 148; see also State v. Garcia, 91 N.M. 664, 665, 579 P.2d 790, 791 (1978). Accordingly, if the legislature truly intends to doubly enhance the penalty for a crime, it must make that intention clear. Keith, 102 N.M. at 465, 697 P.2d at 148. We resolve any doubt about the construction of a criminal statute in favor of the rule of lenity. Id. {7} This Court has held that if a prior felony conviction is already taken into account in determining the punishment for a specific crime, the legislature, unless it clearly expresses otherwise, does not intend that it also be used to enhance the conviction under the habitual offender statute. State v. Peppers, 110 N.M. 393, 400, 796 P.2d 614, 621 (Ct.App.1990); Haddenham, 110 N.M. at 154,793 P.2d at 284 (holding that the legislature had taken defendant's prior felony conviction into consideration when it set the penalty for felon in possession of a firearm, so that the prior felony could not support a habitual offender enhancement); Keith, 102 N.M. at 465,697 P.2d at 148 (holding that the legislature had already taken into consideration prior felony convictions when it set the penalty for repeat armed robbers, and did not intend for those prior armed robberies to be used to enhance the sentence as a habitual offender); Alderete, 88 N.M. at 151-52,538 P.2d at 423-24 (holding that the legislature did not intend the general habitual offender statute to apply to second or subsequent violations for unlawful possession of heroin, since an enhanced sentence was already provided for under the Controlled Substances Act).

{8} New Mexico's trafficking statute contains its own enhancement provision:

B. Except as authorized by the Controlled Substances Act, it is unlawful for any person to intentionally traffic. Any person who violates this subsection is:

(1) for the first offense, guilty of a second degree felony ...; and

(2) for the second and subsequent offenses, guilty of a first degree felony....

NMSA 1978, § 30-31-20 (1990). It is evident from the language of the trafficking statute that the legislature took prior trafficking convictions into account when setting the penalty for a second trafficking offense.

{9} The trafficking statute and the general habitual offender statute indicate that the two statutes have a common purpose: to deter the commission of second or subsequent offenses and to keep repeat offenders away from society for an extended period of time. Thus, the statutes are in conflict and the more general habitual offender statute does not apply. Keith, 102 N.M. at 464, 697 P.2d at 147 (recognizing that where a general statute includes the same matter as a more specific statute, the two statutes are in conflict and the specific act is construed as an exception to the general statute). The trial court properly took the foregoing law into consideration in sentencing Defendant for the substantive offense as a first degree felon and using only two prior convictions for enhancement under the general habitual offender statute.

{10} We now address the more difficult question of whether the legislature intended the habitual offender statute to enhance the penalty for conspiracy when the crime underlying the conspiracy is an offense, such as a second conviction for trafficking, that has its own internal enhancement. We conclude that it did not.

{11} New Mexico's conspiracy statute states:

B. Whoever commits conspiracy shall be punished as follows:

(1) if the highest crime conspired to be committed is a capital or first degree felony, the person committing such conspiracy is guilty of a second degree felony;

(2) if the highest crime conspired to be committed is a second degree felony, the person committing such conspiracy is guilty of a third degree felony; and

(3) if the highest crime conspired to be committed is a third degree felony or a fourth degree felony, the person committing such conspiracy is guilty of a fourth degree felony.

Section 30-28-2(B). The State contends that when setting the penalty for conspiracy, the legislature did not take any prior convictions into account, but instead, based the punishment simply on the highest degree of crime conspired. Therefore, it argues, the prior trafficking felony may be used to enhance Defendant's conspiracy conviction under the general habitual offender statute.

{12} Absent a showing of permissive legislative intent, multiple use of the same facts to prove a predicate offense and to enhance the sentence is precluded by double jeopardy. Haddenham, 110 N.M. at 151-52,793 P.2d at 281-82. While the State's assertion may be true in some cases of conspiracy, it does not hold true in this case in which the elevation of the conspiracy charge from a third degree to a second degree felony was based upon Defendant's underlying, already enhanced trafficking conviction. In order for the court to elevate the conspiracy charge to a second degree felony, it was necessary to show that Defendant...